we look at all the circumstances it seems like that's what they want but right now that's not the standard when we're looking at whether some leather there's been an arbitration or said well the standard is not like can we construe this if we look at everything in gross it's regarding the earn out report that's right but then it also says that figure out whether they are now report is correct you have to look at what goes into the air now report that rider do under at least one interpretation of those words well you  under a delaware interpretation of contract instruction specific language governed general pacific limits general so they say and that clause with respect to disputes for resolving disagreements with respect the are not report and keep in mind here they're talking about as regarding the or now regarding the or not report you would look at the procedures out to the final balance sheet where does it say that it's in one point three of the room i'm looking at paragraph five are you talking about somewhere else report whether they're properly arrived at well you can say well if you look at everything else it doesn't really mean that but that that's what the superficial meaning of it is well isn't it but your honor you have to go beyond the superficial why do you say that are the procedures the monday and when you get to that section then it specifies that we're talking about disputes as to an item loaded in the or not report and we know from the definition of our network or in the contract itself that the or not report is made up of a reasonable detailed statement of revenues broken down by customer for scuse me arbitrator got into the operational issues that that exceeded the scope because clearly in the in the in the documents there were some part of this related to earn out that was subject to arbitration and the arbitrator mean the parties agreed that the  discriminate between the various claims that were being put in the dispute knows and i would say that in our view an issue like whether or not accounting principles were followed i think they wanted to fast be whether or not it was act followed in the case of the owner report that would be something subject to arbitration where they go beyond though and what the apple lihir and miss that was actually arbitrated was what was the meaning of a contract term in other words what was the meeting of the term usual operate the business of thanks in the same way as was operated pre closing and then will that affect what the numbers and they are now report it would affect the numbers so it's a dispute regarding their no report at least but one way to read that language well which is one way to read that it language if you can nor the other portion of the brain i don't see how it ignores when and and i'm not trying to be petty with you i mean you just have to persuade me that this language has a limitation in it that it's hard for me to find it says with respect to these two items you'll use procedures found elsewhere it seems to me you look at those two items and see whether it's a dispute that's with respect to those two items on its face it appears to be and you make a pretty strong argument i think that well if we look at the other parts of the contract we can see that this is what they really meant but that's that's resolving an ambiguity well just there or not report if you can see it that that these questions this sort of affect the numbers well i do with it no question they fact the numbers but i do think that you have to give every word in the contract meaning the part one of the possible readings well but if the parties and intended something broader they could've easily set are now that's a good argument for resolving the ambiguity differently you  are just respectfully disagree that there's an ambiguity and i guess that's that's where we're we're we're all trying to figure out what your argument is so if you look at that more specific language in using delaware a contract construction principles which delaware contract law applies here you look at that specific language to limit and if there is a conflict your honor bill where to law tells us that the specific language control we have to look at that looking at the other circumstances and i appreciate the fact that you're looking at the plain language here to make permanent for scott but look at the other circumstances here i think are important is the time limit placed on the arbitration here thirty  fact that you're selecting an accounting firm to handle the arbitration sophisticated parties can choose whoever they want to arbitrate dispute no question about that and i think i mean all of that pretty persuasive maybe probably would persuade most arbitrary now i will say that i want to address briefly the arguments that that the unique brought up in this case in terms of controlling president j p d or wants to hear  for this other one which in agreement where it says to the other languages and all a she's having a bearing on such disputes the real question is is that comparable language to resolving disputes regarding the regarding our now and the language in our contract i pointed out this for their limited body language elsewhere in the contract and you've got to take that consideration when unique makes its argument about what's how all coppicing this arbitration clauses have to ask yourself a what's the limit the arbitration clause because you can make an argument that anything fits within this arbitration would have to be something that affects the numbers and they are now all would the language then dictate that we go to an accountant to determine whether or not we should have submitted or not before you agreed to if you agreed to resolve that dispute by arbitration and i guess so wouldn't i guess directly into j p d and talk about why that case would be guidance for the dispute here as this court's decision is then distinguished broad enterprise yes your honor the court in j p d recognized that the best place to start is of course the language of the agreement the court also then recognized as has been brought up this morning that if there is any doubt then it must baber and result in the the set of dispute criteria the language of j p g actually was more restrictive than that in this case and that it found that if the salaries disagreed with the calculation that was a term that they used and then as the court has pointed out they also allow that such dispute shall be submitted to and always she was having a bearing on such a dispute shall be resolved by the accountant referee as the court has the excuse me at the language here is more expansive and i'd like to walk through several other key aspects of the provision but relevant to j p d this provides a much broader element in that the or not report includes as the court has pointed out of a ride e of imports including listings involving products involving customers and also involved it seems strange that you would have an account resolving not necessarily your honor and i for one of the points i would work at the  hunter's statement of dispute began with it appears to us that a substantial amount of the revenue should have been recognized in two thousand and nine but instead it is being deferred to later years and if you look at the interplay of subsection six of one point three c it also talks about including revenues and it talks about specifically mandating the inclusion of revenues from existing products if you walk through the language of this contract specifically and one point three c subsection five it includes a need to identify products customers and services specifically because subsections one point three  six and seven offer what was essentially designed to be an apples to apples comparison in this case it came down to determining similar to the situation and a p t then an account arbitrator was as well qualified as anyone to determine whether to be included all revenues were in fact include many of the issues turned on recognizing revenue recognizing include about revenue and whether in the conversion from a cash based accounting recognize the cash on the barrelhead to a gap system dealing with eye items like recognize revenue that there would be some difficult questions that the accounting would be uniquely situated that is that that they enter the buyer heard a different com type of contract so that some of the monies were earned this year some of the moneys were are next year and some of them  this was money that was in their bank account but simply had not recognized that an example would be training fees and set up these so if you have a one year contract which was the existing problem this is a product that that would be recognized this year part of the dispute was they took those products and changed to fundamentally a three year subscription and one of the ways that creates a difference is that the set of fees although received in year one are only recognized rate of only over the entire three year period of the subscription is are they only recognized across the three years or was the contractual arrangement that you would pay x dollars per year for the services and that sum i mean you know i'm trying to trying to ask is the money not fungible i mean do you say that they were you were wanting to say that well the first year of that contract that was real the money for set up and is it what they were saying you know we've changed the way we contract we contract now over a three year period you play a write ability across that period some services and some product in year one in year two and three and i'm right and you're saying no no no set up should have been pulled out of year two and three and put into year one correct correct i would say makes it in correct one read in the context of one point three c which governs the are not including one point three six which the opponents say would not apply here one point three  what i would say is in subsection one point three c six it defines what include all revenue must be and the so my answer view is we believe the information was in fact courtin correct it was the revenue was not accurately reflected returning to j p g and your honest question regarding brat i would say walking through this action the earn out report is defined not only to include revenue as modified as include a bill revenue products services and customer but it also includes on page eight of the asset purchase agreement one point three the five a determination this is notable because j p d called for a calculation this is a dirt determination it's a wider term and as the court pointed out earlier it includes the are not reports he's made with the process for finalizing the turnout report and resolving disputes regarding the are not report the parties agree that each shall have the right and each will follow the procedures set forth and one point five b c and d as if the references they are into the final balance sheet were references to burn out report if you look very briefly to one point five b the written notice can include and i quote any item included in the earn out report and that if you come back i would regard it would strongly support the reading the judge campbell had in the court below now i would point out the court and take notice that not only is the common i worked out of course collins english dictionary defines regarding s q if it isn't from struggle we're all struggling with making with understanding the language but resolving disputes regarding i'm struggling to see how those are parallel because our why you think yours is a broader is a broader right because it's so it's so limited to the on that report itself you know help me understand why that doesn't fit the classic conceptual idea of an accounting arbitration we hire somebody for accounting issues we arbitrate those accounting issues but breach of contract issues like in fi we do those separately what makes your follow everything even the operational covenants into an arbitration of accounting under the subsection roman and numeral six it defines specifically the guidelines for income for calculating ravening for the two thousand and nine two thousand and ten period which was the earn up here and i would note that this is a section under the  not section and in that it says that the buyer was required to mint clude any and all rabbenu of the buyer with respect to products or services service that is provided by concerned with j p g which doesn't create a threshold but rather is an example of something that was very broad but went the other way so you have to distinguish don't you i would be happy to and yes your honor you were on properly sent to the account arbitrator that would be the first distinction and the reasoning was those issues involved like revenue include a bill revenue here would be properly within the scope of the earn out report liability which would have been a contractual limitation not relevant to whether any of the data or numbers in the earn out report were relevant this is they outside his view and that's what the court was working out in man on that the language of the contract made it clear that there were two types of disputes that basically the unlike here unlike here that i want to answer the court's question is that i think the language was that disputes regarding a answer is i don't know what i would start to with my my thoughts on that number one the judge campbell in the court below is dealing with the dispute as presented and i would say in the dispute notice which is  fourteen was the water from valerie hunter then the actual matters before the court i think all of those to the extent they touched on operational work properly before that's fine that's is if you think that the that the regarding language really definition from collins english verb to relate to concern have a bearing on and when i work at the language there i can't find a way to distinguish j p d from the the term i see my time is up thank you  want to make sure i'm clear in this limited amount of time about what actually got arbitrated because there seems to be the suggestion that if you look at the dispute notice and you find accounting terminology therefore there must have been counting dispute arbitrary that's not what got arbitrary in fact we were fortunate in the counting arbitrator in this case said specifically with this case turned on he said this case turns on the language of the oven in which reads as follows covenants regarding post and but it doesn't i mean we're still back to whether those kinds of issues can be our best right and we're back to the contract language and then on the distinction right brad all i would say is refer to the language and brand and i think you'll find that there is not that degree of difference that seems to be suggested here and brat they say rattle notified noble as to whether it disagrees with any of the amounts included in the closing balance sheet and the court goes on to point out that that closing balance sheet has an impact on the accounts payable law building so whatever you determine on the closing balance sheet will have an impact on that separate contract that separate contract claim that the court argument that the definition within the contract speaks to what what revenues should be they are as opposed to what revenue actually was actually i don't disagree with that because what you're