the question of what the word of the distance means and we have arguments going to logic and common sense by and dictionary definitions by each tide and i don't recall that there's a definitive california supreme court decision saying what assistance means in a dno policy is a correct or cal act decision ok now i'm so i suppose what we can do is look at expectations of the insured reasonable expectations of the insured under california law well you know if it occurs to me here's what occurred to me there are two approaches here one is it's not ambiguous and if it isn't it cannot mean what the insurance company says it means because then responding truthfully it in a deposition responding to is to pina ask and answering questions truthfully the deposition would be assistance and the coverage would be lost or can't mean that so it seem that if it's not a ambiguous it has to mean with the district judge says that means more or less some kind of voluntary and instigation or  seems to make it easier for me and i look at the word in the context of participation and intervention the other and solicitation the other words and the string of words t entire policy or even those four words intervention participation if you look at assistance in the context of the exception in the context of the exclusion exception applies and in the context of the entire policy as the parties would have negotiated it in one thousand nine hundred nine it becomes totally on ambiguous that's what i'm doing and it seems to me more likely it does become totally unambiguous to against i mean if you have the whole idea of do you know insurance like this is to give people some coverage for shareholders derivative actions and then the shareholders derivative action there are always going to be some people who gets to be i could be educated have because i'm wrong i thought what happened is plaintiffs were kind of short on evidence they're calling every possible witness they can think of they run across these two guys who were questions and that's all you've got as i recall i my right let me put a little flesh on those bones your honor you had a seventy two page complaint that alleged very specific facts of financial it and there is a judge posner said in the level three case i mean his theory is if the plane if the client is uncovered is covered at the beginning of the climb is covered the beginning and he can't lose coverage because something happens so under that theory if a claim is covered at the beginning then it's just because a witness was subpoenaed and in voluntarily gave testimony then you would you would have still have coverage and you're right i and asked the question and and of the only initiated nothing did nothing to bring this about yes answers the question whatever it is was are all you officers the point is to go through a lawyer and says i want to sue the company i used to work for i was a director there he brings with me many things why wouldn't the plaintiff's bar get smart pretty fast and say if you're a party they lose all their do you no coverage so don't be a party i'll bring in some shareholders and you just give me the information on the q t that i need and i don't want to interrupt your answer cannot compel testimony under the p s l aure until you have survive survived a motion to dismiss so the whole subpoena issue is not going to come into play at all because the case is going to be dismissed unless you have someone voluntarily give information or is that have to be voluntary i think what you're saying is if the plaintiff would move but for some officer telling the truth then the suit is maintained with the assistance of the officer have got the heart and if the plaintiffs would lose but for the truthful the usual version of the duty to cooperate clause and that the clauses that all liability insurance policies have to provide clues but you cannot it's not that sophisticated a deal your car your auto insurance policy gives you a duty to cooperate and the insurance companies often send something to the policyholders what to do if you have an accident they say don't admit fault if the other driver says what were you doing and you say i just wasn't working and then the cop comes and says what were you doing and you say it just wasn't working you don't lose your coverage but in this end i strikes me that that is precisely analogous to this case and that is not unusual in these types of cases there is another provision in that very policy that says if you would midline ability you lose your coverage because these types of cases have the kind of conduct that you can't create the cases to the contrary i mean maybe it's been a while since i practiced this kind of laws for more than twenty years maybe it's changed well this court's decision an american medical professional says look we don't need to that interpretation by the district judge to nobble to me compared to most liability insurance and anti collusion clauses but i could not see word affected the outcome it seem to me that that we were view de novo so it really doesn't matter whether the district judge was right in every jot and tittle and that if he was wrong on economic benefit i but there's no such thing as a pining a fact in summary judgment i don't see where it matters i would say the outcome is affected it's mind which some me and you have to and the facts about voluntary and active if you have an even better we look at what it means in other kinds of liability insurance i think it it has to be in the in the context and exclusion of all shareholder suits your honor and a very narrow exception and construing the plain an obvious within the facts of this case language without exception why they were not by allowing plaintiffs to overcome a twelve b six motion that had to fifteen and let me ask you a couple questions i have everybody telling us how we have to construe assistance and nobody gives us a case by california supreme court or even a california court of appeals thing here's what assistance means and an anti collusion clause and do you have cakes i do not have a california case this is what we have in california about assist cases outside of california the talk about both assistance and in fact maintain the kalak of the california case that i think the court should look at about assistance actually is defined in terms of the cooperation clause it's cited in the reply brief of golf the case is called halt and i believe it's travelers insurance but i certainly know it's all and in fact cases that the plaintiff in the case failed to show up for compelled  it's important because the court must give similar terms in a policy agreement the same or similar definition and it is an artificial definition to say that this word at least has defined the word assistance in th coerced testimony that is the only wish and i look at that because i think the argument is otherwise disingenuous i don't think you can do that actually i don't think it puts the plane in ordinary meaning and certainly there are instances where someone california courts require you to do so that's mechanical courts then asked require you in california the california supreme court says once you arrive in a definition the next task is to consider whether the definition is absurd ate a paralegal for the firm that's defending you and the other officers but actually it's a detective working for the plaintiffs and the person thinking he's talking to his own lawyer is paralegal context of this just after knowing that in my i believe that the definition of existence is an active participation active involvement with the goal of his  something there are a lot of commonalities to mean it's kind of like fourth amendment law is the same for shoplifters and murderers and most ways and that insurance liability insurance has a lot of commonalities about collusion and cooperation these other things that you don't know of other analogs just knows to write i don't not not in the context that this is used and i stress the context i'd like to although i'm not going to reiterate what mr parker said i would point out again that if as you've just mentioned your honor brought and maintained this has to be brought and maintained by with the assistance of the insurers  never brought that's not the way this works you know you know because this is an exception to the exclusion and the only you only get the exception to the exclusion if it's right and not and maintained right and this was somet been insured but the pretextual basis upon which the insurance was withdrawn is illustrated if you look at c w five in that amended complaint he gives exactly the same type of testimony concerning are essentially the same testimony and he's not insured so there was if in fact if you look at all of twenty of the so called confidential witnesses they give more or less the same