[00:00:00] Speaker 02: We'll move on to the last case set for argument this morning, which is Paniolo Cable Company versus Farmer. [00:00:11] Speaker 02: That's case number, well, actually Clearcom versus Farmer. [00:00:15] Speaker 02: It's in Ray Paniolo Cable Company. [00:00:18] Speaker 02: Case numbers 25-2899 and 25-2900. [00:00:38] Speaker 03: Good morning, Your Honors. [00:00:39] Speaker 03: May it please the Court. [00:00:39] Speaker 03: I'm Addison Bonner. [00:00:41] Speaker 03: I'm here for appellant, ClearCom, Inc. [00:00:43] Speaker 03: I'd like to reserve five minutes for rebuttal. [00:00:47] Speaker 03: We're here about due process. [00:00:49] Speaker 03: And in our view, ClearCom didn't get due process in this case for two main reasons. [00:00:54] Speaker 03: First, this case was decided against ClearCom on a summary basis. [00:00:59] Speaker 03: We believe that was improper. [00:01:00] Speaker 03: Second, with the jarkacy ruling, we believe that this matter, you know, our client was entitled to a jury trial in this matter. [00:01:08] Speaker 02: And that also didn't happen because... Can you accept... Okay, two issues. [00:01:12] Speaker 02: Number one, don't you have a duty to preserve... I mean, you agree that no jury trial was asked for below, right? [00:01:19] Speaker 02: Yes, I do. [00:01:21] Speaker 02: So what is it about JARCASY that would have changed that? [00:01:24] Speaker 02: I mean, wouldn't you have had to ask for a jury trial? [00:01:27] Speaker 02: That seems pretty fundamental. [00:01:28] Speaker 03: So JARCASY basically changed the entire framework for, and I think it's still playing out now, for how this is going to work going forward. [00:01:36] Speaker 03: Because we've got an Article 1 court that the case is assigned to. [00:01:40] Speaker 03: And prior to JARCASY, yeah, it would go to that court, and we're stuck with that court. [00:01:45] Speaker 03: But now with JARCASY and with the new rulings that are coming out, you know, if this applies to administrative agencies, this also applies to the bankruptcy court is our position. [00:01:54] Speaker 03: There's a new framework and JARCASY came out in June of 2024. [00:01:59] Speaker 03: Our case was decided in May of 2024. [00:02:01] Speaker 03: So there's no opportunity to preserve during the, when we had this with the bankruptcy court. [00:02:08] Speaker 00: So the implication of your argument on this point, correct, is that the, [00:02:11] Speaker 00: Bankruptcy Court no longer has the ability to do any dispositive motion rulings. [00:02:17] Speaker 03: I think to the extent that the two-part test in jarkacy is met, that is true. [00:02:22] Speaker 03: I mean, I think, you know, there are certain, and I can go through that analysis in this case, we believe this is basically state law claims, common law claims, common law remedy. [00:02:32] Speaker 03: And so the Seventh Amendment applies. [00:02:34] Speaker 03: This is a private rights case. [00:02:36] Speaker 01: Could you consent? [00:02:37] Speaker 01: Could you consent to the jurisdiction of the Bankruptcy Court? [00:02:41] Speaker 01: The people who consent all the time to the jurisdiction of magistrates and are entitled to an Article III court if they wish it. [00:02:48] Speaker 03: I guess it is a novel issue given the change in the framework. [00:02:52] Speaker 03: Why is this novel? [00:02:53] Speaker 03: People have waived juries for years. [00:02:57] Speaker 03: I'm just saying there's a new framework, right? [00:03:00] Speaker 01: Why does that really alter the framework? [00:03:03] Speaker 01: It may alter the framework if a jury's been requested. [00:03:07] Speaker 01: And as to whether the administrative agency has jurisdiction to proceed if a jury is requested. [00:03:12] Speaker 01: Well, but you didn't request a jury here. [00:03:14] Speaker 03: Previously, that just wasn't an option that was available to us being in the bankruptcy court. [00:03:20] Speaker 00: But that's not true, because you always have, if you have a claim that is connected to the right to a jury, you always have the ability to ask to be sent to the district court and out of the bankruptcy court to preserve that jury right. [00:03:31] Speaker 00: That isn't true. [00:03:32] Speaker 01: You didn't need jarkacy here to preserve a jury claim. [00:03:39] Speaker 01: our view, I guess we respectfully disagree. [00:03:42] Speaker 01: It might have heightened your awareness. [00:03:45] Speaker 01: But if you at any time had said, I think we'd like to have a jury here, you could have requested one. [00:03:54] Speaker 01: Maybe the bankruptcy court would have declined it, and you might be here. [00:03:58] Speaker 01: And this would be an entirely different argument. [00:04:02] Speaker 01: I do want to understand your position. [00:04:04] Speaker 01: Your position is that you cannot waive [00:04:07] Speaker 01: a jury before a bankruptcy judge and requested a bankruptcy judge to resolve the questions? [00:04:14] Speaker 03: I suspect that we would be able to waive it. [00:04:17] Speaker 03: I don't think the law has been decided or is clear on that issue. [00:04:20] Speaker 03: But if you can waive it, why haven't you waived it here? [00:04:22] Speaker 03: Why haven't you forfeited it? [00:04:24] Speaker 03: Well, our view is that it wasn't an option that was available to us prior to this new decision. [00:04:34] Speaker 03: Going back to the first portion with respect to the summary judgment, this comes down to the existence of three agreements and a settlement agreement. [00:04:42] Speaker 03: The trustee's position was that Clearcom violated the settlement agreement due to the existence of these three agreements. [00:04:50] Speaker 03: And the evidence that was presented on that were the agreements themselves and our position and some declarations related to those agreements. [00:04:57] Speaker 03: with respect to the agreements our position is those documents were clear on their face the first two agreements the master services agreement that's a 2013 agreement it had a three-year expiration period within it and so would have expired by 2016 prior to the date the settlement agreement was entered into I believe that was March of 2020 where clear comma tested that there were no agreements and so [00:05:23] Speaker 02: You're right that it had a 36-month expiration period, but it also said that that had to occur with written notice. [00:05:34] Speaker 02: Did you provide written notice? [00:05:36] Speaker 03: I don't believe that's in the record, your honor. [00:05:39] Speaker 03: However, our position on that is we're the defendant here. [00:05:43] Speaker 03: And it's not our duty to prove when certain things happened. [00:05:47] Speaker 03: If they're going to take the position that this agreement is still valid. [00:05:51] Speaker 02: Oh, if you're going to say, I'm not sure that's totally true. [00:05:54] Speaker 02: I mean, you're arguing that the agreement is not valid any longer. [00:05:58] Speaker 02: And if you're going to read the terms of the agreement, it says, well, it expires on 36 months with written notice. [00:06:06] Speaker 02: there's no evidence of any written notice, then the assumption is that the agreement is in play. [00:06:12] Speaker 03: Well, to counter that, we did put in the declarations of representatives of CLEARCOM, and on the reconsideration piece of this, we also secured the declaration of... That written notice was provided? [00:06:25] Speaker 02: It doesn't specifically say that written notice... That's what I'm... I mean, I'm asking about the written notice. [00:06:31] Speaker 02: Is there any evidence that that term was complied with? [00:06:36] Speaker 02: To terminate this contract. [00:06:37] Speaker 03: I don't believe there's evidence directly on that point in the record. [00:06:41] Speaker 03: However, so didn't do you? [00:06:43] Speaker 03: What's your position on that that it doesn't require written notice correct by the actions of the parties the agreement terminated on its face? [00:06:51] Speaker 00: So here's I mean. [00:06:53] Speaker 00: I understand the arguments that you've made under multiple of these contracts about their terminations. [00:06:59] Speaker 00: And I think that there's arguments to be made there. [00:07:01] Speaker 00: But setting that aside, my understanding is that in the record, it demonstrates that payments that were made under these contracts continued after the termination dates that you're advocating for under the terms of the contract. [00:07:13] Speaker 00: So when that's true, I don't understand the termination argument at all. [00:07:18] Speaker 00: payments continued to flow, then that is pretty concrete evidence that there was not termination of either of these agreements. [00:07:25] Speaker 03: Our position is the payments continue to be made, but they're not under the expired agreements. [00:07:32] Speaker 00: They're under... They were the exact kind of same sort of payment structure, same sort of character, same sort of from the same person to the same person as before and after. [00:07:43] Speaker 00: So what tells us that those payments were being made under some sort of different agreement? [00:07:48] Speaker 03: would be the declarations of the clear calm representatives and Mr. Santos's declaration and essentially what we're talking about here is there's a new agreement that was put into place thereafter the 20 minutes of that you know that it's it's difficult for us to kind of it's the trustees theory of the case that is just a continuation of these order agreements our position is no there are other agreements and there's a new agreement there's you have to put into evidence what those new agreements were [00:08:16] Speaker 03: We did put in the 2021 agreement. [00:08:19] Speaker 03: We did put that in, and there's evidence in the record. [00:08:22] Speaker 03: In our view, that's enough to have a trial on the issue, because there's conflicting evidence about what these agreements mean, and even ignoring the termination issue. [00:08:32] Speaker 03: We're talking about the 2021 agreement and payments made there under, and what those payments were made for. [00:08:37] Speaker 03: Our position is that wasn't for the pineal cable network, and that's the only asset that the trustee had control of. [00:08:43] Speaker 03: And their argument works if [00:08:45] Speaker 03: Payments were made for use of the Paniolo Network in violation of the settlement agreement. [00:08:51] Speaker 03: But our position is those payments were not for the Paniolo Network. [00:08:55] Speaker 03: I don't think our obligation is to put in the specifics for them because it's their case. [00:08:59] Speaker 03: All we have to do is put in evidence that says, no, your theory is wrong, and there are other agreements. [00:09:06] Speaker 00: So you're just hanging your hat on making those termination arguments under the temporal provisions of the contracts. [00:09:14] Speaker 00: Because I don't see in the record an explanation for why it would make sense to conclude that the payments that look the same continuing after you're advocated for termination dates, like why we should assume that those are coming from some other obligation other than just continuation of these contracts. [00:09:32] Speaker 03: And it's the clear com representatives, the he's Albert and Wendy, they put in information to the contrary there. [00:09:38] Speaker 03: And what happened was our position is the bankruptcy court improperly made a credibility judgment and basically said, you know what, I don't believe that. [00:09:46] Speaker 03: And if the court doesn't believe it and ignores those declarations, well, okay, then I mean, then that's, you know, that's why the outcome is the way it is. [00:09:56] Speaker 03: But we believe that was improper. [00:09:58] Speaker 01: Wouldn't a new agreement have violated the settlement agreement? [00:10:05] Speaker 01: You can get around the settlement agreement, the settlement agreement was just that we don't have any existing contracts and as soon as you sign that agreement you can enter into new ones anyway? [00:10:13] Speaker 03: The agreement provided we didn't have rights to the Paniolo cable network and so the new agreement doesn't relate to the Paniolo cable network in terms of it's not selling access on that network. [00:10:24] Speaker 01: The old agreement did, the old MSA did, right? [00:10:28] Speaker 03: It did, yes. [00:10:30] Speaker 03: But the new agreement specifically doesn't refer to the Pontiolo cable network. [00:10:34] Speaker 03: It's other infrastructure, licensed infrastructure, that CLRCOM had access to. [00:10:39] Speaker 03: So that's our position, that the court just went ahead and ignored all of that. [00:10:44] Speaker 00: I'll go back and look at those declarations, but you keep referencing that there's declarations that say that these were under new agreements. [00:10:50] Speaker 00: Specifically, what do they say? [00:10:54] Speaker 00: We paid you, I don't know, I'm going to make up numbers. [00:10:56] Speaker 00: We paid you $1,000 a month for access to the network. [00:11:00] Speaker 00: And then we terminated our agreement on this date. [00:11:02] Speaker 00: We continue to pay you $1,000 a month, but we're paying you for something else now. [00:11:07] Speaker 00: And just take our word for it. [00:11:08] Speaker 00: I can't tell you any details about what the new agreement is or whatever. [00:11:11] Speaker 00: So what are they saying? [00:11:13] Speaker 00: They're continuing to pay the same amount for something different. [00:11:19] Speaker 03: Right. [00:11:19] Speaker 03: And it's for the use of different networks. [00:11:22] Speaker 00: You don't have a contract to show that. [00:11:25] Speaker 03: The 2021 agreement is not it makes it clear that it's not about the panel cable network. [00:11:34] Speaker 03: And so it doesn't have detail about what specific network we're talking about, but it's not the panel cable network because that agreement was made after the settlement agreement and clear com was aware of, you know, the terms of the settlement agreement. [00:11:45] Speaker 03: So that agreement in particular was done afterward. [00:11:50] Speaker 00: I thought in the record that Clearcom admitted that even the 2021 agreement related to the Paniolo network. [00:11:56] Speaker 03: So that is what the trustees argument is, but that's if you look at what it stands on and what and what support for that there is, it's not really there. [00:12:03] Speaker 03: It basically relies on an interrogatory response that asks for disclosure of documents that essentially may relate to the Paniolo cable network. [00:12:12] Speaker 03: And so that agreement was put into that category, but that's not a, it's not an admission like admit that this agreement is selling access on the Pontiolo cable network. [00:12:21] Speaker 03: I mean, that's not what we're saying there. [00:12:22] Speaker 03: All we're doing is providing discovery responses. [00:12:25] Speaker 03: This agreement is, you know, it's part of the series of agreements between charter and clear com, but it's not an admission that this is selling access on the Pontiolo cable network when the agreement itself doesn't say that. [00:12:39] Speaker 03: So that's our position because there is this ambiguity here. [00:12:41] Speaker 03: There is this factual issue that should not have been decided by summary judgment. [00:12:46] Speaker 03: And that affects both the liability portion and the dollar damages because of this payment issue. [00:12:51] Speaker 00: So I want to make sure that I give fair consideration to the argument you're making. [00:12:54] Speaker 00: Can you point me specifically into the record where you think I'm going to find evidence that would create a question of fact that there was new agreements that the continued payments were being made under and that those agreements don't reach the settlement? [00:13:05] Speaker 03: And I'm sorry, I can't refer to numbers, but I will tell you it's the Declaration of Albert He, it's the Declaration of Wendy He, and on the reconsideration portion, we submitted the Declaration of Norman Santos, a former employee of Charter. [00:13:21] Speaker 03: Thank you. [00:13:21] Speaker 03: May I reserve? [00:13:22] Speaker 03: Yeah. [00:13:30] Speaker 04: it please the court my name is jonathan bolton and i represent the appellee david farmer the the plaintiff in the underlying action is planned agent uh... mister bonner started his presentation talking about due process and as you can see from the record in this case clear com was given every chance along the way to make arguments but as you see from the record their arguments kept changing overtime [00:13:56] Speaker 04: We started out with a straightforward argument where they said, well, OK, we received the money, but we gave the money to SIC. [00:14:06] Speaker 04: It wasn't clear, Tom. [00:14:07] Speaker 04: We used the cable, but we gave it to SIC. [00:14:10] Speaker 04: But over time, this argument has morphed. [00:14:12] Speaker 04: And then today, you're hearing arguments about how these contracts terminated. [00:14:17] Speaker 04: And again, this argument was only brought up, I believe, in connection with the motion for consideration the first time it was ever presented to the court. [00:14:26] Speaker 04: So we've objected to these arguments being presented because everything they've done on these arguments about the contracts being terminated was late So that okay, so if we're gonna look at these Albert and Wendy and Santos, I don't know if I have those names, right? [00:14:41] Speaker 02: Yes, look at those declarations your your first argument is You can't look at those because those all were brought on Reconsideration and the district court did not abuse its discretion by saying you could have had this evidence before [00:14:56] Speaker 04: To be precise, Your Honor, the he declarations were presented with the sir reply. [00:15:01] Speaker 04: The Santos declaration was only presented in the motion for reconsideration. [00:15:05] Speaker 02: I see. [00:15:06] Speaker 02: So they could, if we looked at the Albert and Wendy declarations, the reconsideration argument wouldn't apply to that. [00:15:17] Speaker 02: The fact that that was presented, okay, maybe I misunderstood you. [00:15:23] Speaker 02: I thought you said those were presented [00:15:25] Speaker 02: with the actual original motions? [00:15:30] Speaker 04: Well, on the sur-reply, Your Honor. [00:15:32] Speaker 04: Remember, we're the plaintiff. [00:15:33] Speaker 04: We had a reply. [00:15:34] Speaker 00: Did the district court consider that information? [00:15:37] Speaker 04: Judge Farris gave them the ability to file a sur-reply for limited purposes. [00:15:42] Speaker 04: And in that sur-reply, which was meant to only deal with the damage adjustment, that's when the he declared. [00:15:48] Speaker 02: Did he make a fine? [00:15:49] Speaker 00: Well, go ahead. [00:15:51] Speaker 00: Did the district court consider that new information submitted with the sur-reply? [00:15:57] Speaker 04: You mean the BAP, Your Honor? [00:15:59] Speaker 00: Yes, sorry. [00:16:00] Speaker 04: Or Judge Ferris, the trial judge. [00:16:03] Speaker 00: The trial judge, where the motion was made. [00:16:06] Speaker 04: It's unclear because we did object to those coming in because it was only filed in connection with the surreply. [00:16:13] Speaker 04: Judge Ferris didn't specifically grant our motion to strike that surreply, but I think impliedly he granted it because he said it was late, it was beyond the scope of what I allowed you to file in the surreply, but I think he did look at them and consider it. [00:16:31] Speaker 00: Okay, and if he did that, would you agree that we have discretion? [00:16:34] Speaker 00: in terms of whether we apply a forfeiture or not. [00:16:37] Speaker 02: Yes, Your Honor, you would. [00:16:38] Speaker 02: So Santos is the only one that, well, regardless, there are two different issues, because two different procedural issues. [00:16:45] Speaker 02: One is the surreply issue, which applies to the first two. [00:16:48] Speaker 02: And the Santos issue, it's the reconsideration issue. [00:16:52] Speaker 02: So that's your first line of defense. [00:16:54] Speaker 02: Correct. [00:16:56] Speaker 02: For two different reasons, these three declarations are improperly. [00:17:00] Speaker 02: before the court and we shouldn't consider them either. [00:17:04] Speaker 02: What if we get into the substance of them? [00:17:06] Speaker 02: Help us understand why those arguments... I guess what we wouldn't really be able to look at, I guess we technically could, but if we thought that they were properly before us and that the district court, the lower court hadn't looked at this properly, wouldn't the better course be to remand to look at that and see whether that created a new contract? [00:17:30] Speaker 04: Well, I think if you look at what those declarations say, and Judge Farris pointed out, and the panel already pointed this out, there was admissions by CLEARCOM all the way along about, for example, use of the Paniolo network. [00:17:45] Speaker 04: That is what they were trying to contest. [00:17:47] Speaker 04: in the declarations, right, primarily was the fact that it wasn't the network that was being used. [00:17:54] Speaker 04: But there was so much evidence before Judge Farris when he considered this that he said, look, even those declarations that you gave me in connection with the motions that were timely, [00:18:05] Speaker 04: were so contradicted by the contemporaneous facts in the emails, the language of the contracts, and the admissions that I believe he cited Scott V. Harris to say, look, there's no reasonable jury would believe. [00:18:20] Speaker 04: with all this evidence I have in front of me, what you're trying to say in these late declarations that are so late in the game. [00:18:26] Speaker 04: So I think likely if it was remanded, he would apply the same kind of reasoning because you have all this other evidence. [00:18:34] Speaker 04: It's really overwhelming when you look at it compared to these new arguments that are coming up with that are late in the day. [00:18:41] Speaker 02: Are we reviewing that? [00:18:43] Speaker 02: Do we review that de novo or abuse? [00:18:48] Speaker 04: I think I believe the standard for a motion for reconsideration of abuse of discretion. [00:18:52] Speaker 02: Well, that's for the motion for reconsideration. [00:18:55] Speaker 02: For the original one, I mean, I guess it gets into, again, I'm setting your procedural arguments aside. [00:19:04] Speaker 02: For the original two, we would be looking at that de novo, wouldn't we? [00:19:08] Speaker 04: I think for factual determinations, it would be an abuse of discretion, but otherwise de novo. [00:19:13] Speaker 02: Well, at best, you've got a mixed question of fact and law. [00:19:18] Speaker 04: I would agree with that, Your Honor. [00:19:22] Speaker 04: Turning to, I think, counsel admitted on the record here today that the master services agreement does relate to the Pontiolo Network, and he really had to when the panel asked him about that because that's what the admissions say. [00:19:35] Speaker 04: Now, he did try to argue that the 2021 agreement did not relate to the network, but I point the court to the record at [00:19:47] Speaker 04: page 369, which is their opposition to the motion for summary judgment, and I'll quote it for the panel. [00:19:53] Speaker 04: They said in their opposition, quote, clear commerce receive monies from charter for its emergency use of the Pontiolo cable network under the October agreement and the 2021 agreement. [00:20:06] Speaker 04: So they've admitted in their own platings. [00:20:08] Speaker 04: So to come here today and say it wasn't related, they've already admitted that. [00:20:12] Speaker 04: So I don't think they can take a position different with you today. [00:20:18] Speaker 04: That's all I have your eye unless you have questions, okay. [00:20:24] Speaker 04: Thank you. [00:20:24] Speaker 03: Thank you Just briefly addressing that last point that You know quote-unquote admission. [00:20:37] Speaker 03: That's not the end of the matter. [00:20:40] Speaker 03: I mean we're talking about [00:20:42] Speaker 03: how much and damages, right? [00:20:45] Speaker 03: And so it's their case. [00:20:46] Speaker 03: They have to show how much of this payment was related to use of the pineal cable. [00:20:51] Speaker 03: And that's why I think, you know, summary judgment was inappropriate. [00:20:54] Speaker 03: There's multiple agreements at issue. [00:20:56] Speaker 03: Some monies were paid in connection with the pineal cable, and some monies were not. [00:21:01] Speaker 02: But you agree that, I mean, the district court, the lower court, rejected that argument that there were multiple [00:21:11] Speaker 02: Or your position is it didn't consider it. [00:21:16] Speaker 03: My position is it considered it and made an improper determination based on credibility. [00:21:22] Speaker 03: Basically, seeing itself as the judge of both the law and the facts, it just went ahead and skipped right to the end of the case. [00:21:31] Speaker 03: And that's improper. [00:21:32] Speaker 03: That's what our position is. [00:21:37] Speaker 02: Are there two separate declarations for Wendy Yee and Albert Yee? [00:21:41] Speaker 02: Yes. [00:21:42] Speaker 02: Can you point me in the record for the Wendy Yee? [00:21:45] Speaker 02: I'm not seeing it. [00:21:47] Speaker 03: So attached to the star reply there should be the declaration of Albert Yee. [00:21:52] Speaker 03: Wendy Yee [00:21:53] Speaker 03: would have been submitted in connection with an opposition on the summary. [00:21:59] Speaker 02: They're not in set. [00:21:59] Speaker 02: They're not in separately because I see in volume for 938 to 41. [00:22:06] Speaker 02: I see the declaration of Albert Yi. [00:22:08] Speaker 02: Is that what you're relying on? [00:22:10] Speaker 02: Or do I need to go to one of the briefs? [00:22:15] Speaker 03: Yeah, my recollection is that declarations were submitted in connection with both summary judgment motions and so [00:22:23] Speaker 03: That's where they would be as well. [00:22:24] Speaker 01: The Santos declaration was submitted only in connection with the motion for reconsideration? [00:22:28] Speaker 01: That is true. [00:22:29] Speaker 01: And it's just three pages? [00:22:31] Speaker 01: Yes. [00:22:31] Speaker 01: Two and an eighth. [00:22:33] Speaker 03: That's right. [00:22:34] Speaker 01: And what am I supposed to get out of the Santos declaration? [00:22:37] Speaker 03: So the reason we had to go there was the court basically in its rulings made a credibility determination that the he's were not credible. [00:22:44] Speaker 03: And we thought that was improper. [00:22:46] Speaker 03: So we went to go to get someone else who wasn't one of the he's, who was a former [00:22:50] Speaker 03: Charter employee and basically he said the same thing that the he's did so initially wouldn't have made sense for us to get that declaration because it's duplicative of what the he's are going to say, but if he's going to you know, I think improperly make of I don't see anything in here that relates to the 2021 agreement. [00:23:07] Speaker 01: I see that it relates to the to the MSA to the 2013 MSA into other agreements. [00:23:13] Speaker 01: I don't see anything in here about 2021. [00:23:15] Speaker 03: Right. [00:23:15] Speaker 03: And I think, you know, part of what it was was when we got this declaration, he was a former employee at that point. [00:23:21] Speaker 01: It just seems very, very general. [00:23:23] Speaker 01: I'm just I'm looking at it now. [00:23:25] Speaker 01: I've highlighted things that I looked at earlier and have circled things. [00:23:29] Speaker 01: I'm not sure what I'm supposed to get out of this, as I sit here today in this argument. [00:23:34] Speaker 03: Essentially, it's largely to say that, hey, this shouldn't be a credibility contest. [00:23:38] Speaker 01: It doesn't refer to the ease. [00:23:40] Speaker 01: And he's referring to everything that is prior to the settlement agreement. [00:23:47] Speaker 01: He's not referring to anything that occurs after that. [00:23:49] Speaker 01: So it doesn't seem to help me at all with understanding what happened after you entered into the settlement agreement and these payments continued. [00:23:57] Speaker 01: I mean, there's just no detail here whatsoever. [00:24:00] Speaker 02: Understand that and and largely it had to do with addressing the credibility concern in the trial courts mind But the credibility concern as to the what at most the 2000 through 2013 agreements Right and again, you know, it's a limitation it doesn't help you at all We believe it does. [00:24:20] Speaker 02: Okay, so All right, I'll have to track down this other stuff because I can't find the Wendy ye [00:24:30] Speaker 02: declaration. [00:24:32] Speaker 02: So I don't know if you could point us to that. [00:24:36] Speaker 03: Let me take a look. [00:24:37] Speaker 03: I'm not right this minute. [00:24:39] Speaker ?: Okay. [00:24:40] Speaker 00: I have one follow-up question with regard to something you said before, and that is that the interrogatory answers are not as definitive as your friend across the aisle wants to make them seem. [00:24:50] Speaker 00: So I want to give you a chance to deal with that. [00:24:52] Speaker 00: So here's the interrogatory request. [00:24:55] Speaker 00: Identify all agreements entered into by you and or SIC and or WIMANA. [00:25:02] Speaker 00: Relating or referring to the use of or access to the Paniola cable network, and then there's a list I mean you objected to the interrogatory, but then there's a list of contracts that include the ones talking about so I Guess what is the wiggle room in that? [00:25:17] Speaker 00: Interrogatory request that indicates that the response is not saying these contracts relate to this Service that we've been talking about [00:25:25] Speaker 03: So our view is the responses provided subject to the objections, and largely this list of contracts was put forward just to make sure we're covering our bases. [00:25:34] Speaker 03: It's not put forward to say, hey, here's an agreement that relates exclusively to the Paneolo cable network. [00:25:40] Speaker 03: Now, you know, to the extent there's other evidence that maybe a payment or two were made with respect to the Paniolo Cable Network. [00:25:47] Speaker 03: OK, fine. [00:25:47] Speaker 03: And that's what that was meant to cover and to prevent a situation where they're accusing us of withholding documents or just doing anything improper with discovery. [00:25:55] Speaker 03: Our position is that's not an admission that all payments made under all these agreements relate to the Paniolo Cable Network. [00:26:03] Speaker 00: But some do. [00:26:04] Speaker 00: And so wouldn't that be evidence of breach? [00:26:07] Speaker 03: So to the extent they can show that some do, then perhaps it is evidence. [00:26:12] Speaker 00: But... So is your argument here that summary judgment shouldn't have been granted in terms of... [00:26:18] Speaker 00: And maybe you've said this, as in terms of what the damages are related to the breach and not the fact of breach. [00:26:24] Speaker 03: Yeah, I mean, our argument is as to both, but I think they merit separate consideration, both on the liabilities. [00:26:30] Speaker 00: I don't know how you make the argument that there isn't enough evidence for summary judgment of the fact of breach. [00:26:42] Speaker 00: The interrogatory is pretty straightforward, and the response is pretty clear in terms of, here's a list of contracts that all relate to the Paniola network. [00:26:50] Speaker 03: Right, and our position is, you know, that doesn't mean that they relate exclusively to that network. [00:26:55] Speaker 00: Okay, so that would go to damages, but not the fact of breach. [00:26:59] Speaker 03: I mean, I guess I view it slightly differently, but I understand your argument. [00:27:03] Speaker 02: Albert He, the declaration, the only one I see in here, and maybe you're referencing a different one, is in volume for ER 942 to 50. [00:27:16] Speaker 02: That was signed in November of 2019. [00:27:19] Speaker 02: You must be referencing a different one, right? [00:27:21] Speaker 02: Because your position is Yi's declaration shows that the agreement extended beyond 2021. [00:27:30] Speaker 03: Right. [00:27:31] Speaker 03: And potentially that's a typographical error. [00:27:35] Speaker 03: Well, are there two declarations? [00:27:37] Speaker 03: My recollection is there are multiple declarations, yes. [00:27:40] Speaker 03: All right. [00:27:41] Speaker 03: Well, we'll take a look at it. [00:27:43] Speaker 02: Anything else to sum up? [00:27:46] Speaker 02: Thank you for your consideration. [00:27:47] Speaker 02: Yeah, thank you. [00:27:48] Speaker 02: Thank you to both counsel for your arguments in the case. [00:27:50] Speaker 02: The case is now submitted and that concludes our arguments for the day.