clarify the facts that pertain to them and then basically violate a basic rule of advocacy and anticipate an argument or issue that may or may not be raised by council or the court and that is whether or not  honeyed case in the decided by the california supreme court with respect to the definition of advertising injury and somehow  then at the insuring provisions and if the exclusions in order to determine whether there was any possibility of coverage and in evaluating that the first issue that comes to mind is what is the scope of the information  for which the transfer petition insurance company was charged the upper deck case of course decided by transportation for the proposition that it so obligations of investigation were the four corners of  and that he was enough are uncertain enough one could suggest as to implicate advertising injury within the meaning of the insurance policy before one even gets there however the question is yes we can we limit ourselves even the complaint and i'm going to address your question head on i'm not attempting to avoid it at all but in this particular case not only do we have the general obligations of an insurer to conduct an investigation where the complaint itself creates an inquiry know this and i'm sure that's the the import perhaps of your question that i intend to address but we have a specific representation indeed a promise that an investigation is undergoing and will continue and that the insurers will be informed should that continuing investigation indicate that the carrier is inclined to reconsider the status quo the status quo being that it is not participating in the defense so this takes this case in my view out of the the limitations to the extent there are any on the general obligation of an insurance company to look beyond the complaint in order to ascertain whether there is possible advertising injury alleged if we have knowledge of that then it seems to me the analysis is very straightforward very easy because it's clear or at the very least there's a genuine issue as to whether it's clear that claims were being made as evidenced by the osbourne letter of october fifteenth which were classic advertising injury kinds of claims it's also clear based upon the deposition testimony of the a friend principals that in fact they were engaging in activities through information that i'm alluding to right now this is strange to the complaint was provided to the insurance company as best i can ascertain on october fifteenth the reason why the information was not previously provided  and that was the denial letter was october fourteenth the explanation letter was october fifteenth they just crossed in the mail it's clear from the text of the october fifteenth letter that it was written without any awareness of the fact that this ultimate denial letter was i think unquestionably they should have considered i reconsidered the issue of defense with the benefit of the climb and of course they did have the benefit of the clime they also had the benefit of an office offer to rescind the deal altogether and they didn't in fact reconsider i think what transportation is attempting to do your honor is just it's an obligation to honor its representation that it would conduct an investigation she has its own obligation to conduct an investigation if it's an inquiry notice based upon the language  the complaint somehow to the insurers that's something not the law and furthermore transportation is attempting to do that in a situation where the insurers were reasonably led to believe that the status quo was that they were not being defended therefore there was no reason to insurer did not even know at that point what if any problems transportation was it was was was having with the complaint and with this analysis and that's the reason why we have insurance regulations under the regulations transportation if indeed it was in the process of evaluating whether or not to defend has certain obligations which you completely ignored you had the obligation within thirty days to either make its coverage decision or communicate with its insurers and riding done in fact what's interesting about this case one of the many things interesting about this case is in the may twenty ninth letter when transportation essentially indicated initially that it couldn't decide whether or not it was obligated to  that position is odd and especially since they cannot say and have not even argued that the allegations of the complaint specifically negate any possible duty of defense which is their burden it's not our burden it's their burden all we have to show is a theoretical possibility that we don't even have the burden of an in artfully drafted complaint because the insurance company as monstrous says cannot hide behind the fortress of an hour from it's like ok that paragraph twenty four i that the defendants were competing with superpower with regard to the subject matter of the product of the project now what i'm suggesting by the way as i'm going through here is that it's appropriate and necessary to put these all in context and not just view one in isolation next at paragraph twenty four x the defendant's computer was a superpower with respect to user client applications this was found more and more like a competitive exercise out in the marketplace at paragraph thirty one g and this is important that the activities of the defendants cause damage to the goodwill and reputation of superpowered we're taking now another giant step forward in terms of improper advertising because that is the effect of advertising if it's improper is to impugn reputation and goods and services and then it goes on to say that as a result of that super power lost profits a paragraph thirty one h and a thirty one zero is business operations were interrupted now why would that conceivably and potentially put anyone on notice of the possibility that advertising injury was being or could be alleged it's because those things are broad enough to enclose includes encompass improper advertising activities as a vehicle through which those things would have been is what cries out for a question from the insurance company because the insurance company cannot look at those allegations and simply say that cannot be cannot possibly be advertising injury in the in the case cited by transportation the insurance company was able to say that because that allegation based upon rico and so forth could not be amended without contradiction and on its face in the give it any possibility of a cover klein now if we put these allegations your honour's in the context of the transportations direct promise to investigate then in that situation i think it's reasonable to hold transportation responsible for the consequences of the investigation had it undertaken one like what came out subsequently insurance contract says about settlement is in the no voluntary payments clause which which i understood i was asked to assume was not implicated in with not enough itself be a basis to sustain the district court's decision if you like me to elaborate on that i'd be happy to do that that what could they have learned that was the questions and it is the question of course what they could have learned is what the briefs say the evidence will show as to the activity that was taking place they could have learned that number one that superpower was complaining because they had used their website and misappropriated superpowers marketing concepts style of doing business and ideas we have to keep in mind that the project in an itself was designed for use in connection with the internet and so this kind of activity was particularly onerous insofar as superpowers the value of the project the superpower is concerned it was being promoted as something that was totally innovative state of the art so an advertisement by a frame on its website that it was doing this kind of thing would have been pinned that basic marketing concept they would have discovered  also the specific allegation that that trade secrets inside information were being misappropriated now we know in one of the cases cited i think it was mclaughlin but i could be mistaken  the issue was presented whether trade secrets of the misappropriation of trade secrets could constitute constitute advertising under the modern forms and the court pointed out in that case that the advertising injury concept which is not defined specifically advertising not being specifically defined in a new form was in the us in that respect because that could have the misappropriation of a trade secret for example could include trade dress ok include style of doing business which clearly would be ensure under an advertis injury the key factor being here this you know transportation is obligated to investigate not only by the basic principles of law but also buys on representation if it learns things that i'm just now eluding to and what you'll find in the october fifteenth letter and also in the past a deposition that decided you know has knowledge of things which i don't know how one could interpret them any other way than constituting advertising injury because in some poor respects the very language of the policy is tracked misappropriation a style of doing business is actually used marketing concept is actually used that language actually appears in the policy so we have a situation where transportation could have and should have discovered those contentions now if as a matter of law you're not able to say the transportation could have and should have at the very least even had if it had made an investigation this information would not have been revealed through it but i don't think the transportation gets to make that contention here that's what trials were for what this case smacks of in my view is a lot of opportunism we have an insurance company that left a status quo on the twenty ninth that it was not participating in the defense and left that commitment open to some possible development that may or may not occur if transportation  can't evaluate so we're not going to do anything right now we're going to investigate and we'll get back to you in thirty days this case will be a different case you didn't comply with the regulations in fact this case would have been a different case but the let the status quo that was left was that there was no defense then the next bastion that transportation wants to take is that a frames attorney mr adams sent a letter out of frustration in july in which he says to transportation we still haven't heard from you you haven't gotten back to us to get back to us by august fifth august sixth excuse me transportation then contends the deal was done before august sixth was the evidence the evidence is that they never would have defended in any way they didn't respond at all ever to mr adams a letter they didn't take any position by august sixth they didn't take any position until october fourteenth as a matter of fact and then we get to october fourteenth which makes it clear and it's undisputed that they weren't defending they wouldn't defend they never would defend and now they want to say that in that world they got off the hook because the they were insured did not comply with no voluntary payments provision which would have protected no legitimate interest of transportation at that point because it had no interest in doing anything so even if even if it's insured just should have understood that transportation had not decided not to defend and that in an a travel issue a fact even if they're charged with that at understanding or apprehension even then nevertheless for transportation to come back later and then say we're off the hook because we never would have defended but by the way you entered into an agreement which prejudiced our ability to defend and settle which we never would have done in a way that's an idle act that makes no sense whatsoever in my view and essentially is a form i think of sandbag if you look at these specific impulse case which is cited in the brief it is a case that specifically deals with a computer software business and as a matter of fact it's a case which deals specifically with advertising on the defendant's website and it's a case which deals with the advertising injury issue that the court has framed and in that specific case the court held that activity to constitute advertising injury within the meaning of the for this advertising i alluded earlier to you need case with which i know that certain members of the panel are very familiar and what i want to make clear here is not only was there the allegation of claims involving the web and promotion and we know after i had had aided by the way i need being a case in which of california's supreme court said that advertising had to be widespread in order to qualify for the advertising injury coverage it left open the issue of whether marketing to a specific segment would qualify that issue was later clarified by the california court of appeal which all that that behind the test could be satisfied but in this case we have something unusual harmeet was construing the standard you policy and it's free and it's covered with respect to advertising injury we don't have a standard policy here in the umbrella in this case it specifically provides for coverage in those areas which the hominy court suggested would not have been covered under the standard definition and this appears at the excerpts of record at page one fifty three is where this portion of the policy is to be found it's easily overlooked because the policy itself i considered a single occurrence regardless of the frequency or repetition or number or kind of media loop used so essentially this policy answer the very problem that was addressed in honey tonight and i respectfully suggest for that reason if anyone is think you're over your time thank you court i would just like to address some items that the court brought up with mr osborne just moments ago the first question i believe was is there an alternative basis to sustain the district court's ruling and  forth in our brief and as was set forth in our motion for summary judgment there are numerous other reasons to sustain the district court's ruling there have been no allegations of bodily injury property damage personal injury or advertising injury in addition there is an exclusion for professional services are rising at a software development in this case the entire contract between super power and a frame dealt with superpowers request that a timeline as i understand it is that a frame tendered to transportation at a time when the complaint had not even been served so at the time of the tender there was nothing to defend transportation said it would investigate and get back to the insured between the time that a frame tendered and the time the transportation responded the complaint had been served but the transportation had no expectation that it was in any way inclined to undertake an immediate defense of the insured there was no defense to be undertaken and prior to transportation declining the insurance settled the insurgency even give transportation the time that it's attorney did in july and the july letter to transportation they said you've got until august sixth get back to us and prior to that time without any further notification a that there that it had been served and that a defense needed to be undertaken transportation was never given that right at the time with that information to provide a further response in addition transportation would urge th court look very carefully and closely at its prior precedence i felt versus travelers and