Legal Case Summary

7am 7am 238 Halt! Mr. Schganiel? Schaniel. Schaniel, you may proceed. May I place the court to sell Schaniel for a plaintiff of pellet citizens? This is a wind staircase where the trial court made legal errors in applying legal standings and burdens in order to find that free as massive breaches in that cost citizens any lost profits. The trial court's opinion relies on two critical legal errors that are addressed here today. First, the trial court required citizens to prove specific investment opportunities that were lost as a result of the breach in order to establish causation. That is simply wrong and in case of an ongoing high-volume business that suffered an overall loss in that same business. In the matter of the kind of the start here, you never achieved your 10% capital goal. Wouldn't you have used whatever extra money you might have received in supervisory goodwill as to meet your capital goal? Prior to the breach, citizens had in fact reached a 10% capital ratio as of mid-1989. As citizens was approaching at the 10% and 87% and 88% began growing more significantly. In terms of addressing the capital goal right away, while the top put down on that fund that the 10% was documented to its satisfaction, it had 10% for the breach and it had reached 10% again in 1993, at which point it began growing again. But the 10% capital goal was simply the leverage ratio in putting and determined how much growth citizens would have had absent the breach. It was irrelevant to growth that citizens would have had under lower levels

. That is, the minimum growth that citizens would have had by simply continuing on with this past history of growth and that if it appears to 5% to 7%. Let's look at another, there's a variety of areas in which the trial court faulted your analysis. Another one was that your expert, Mr. Horvitz, assumed a 7% growth rate when in fact you achieved somewhere between 1% and 4%. Where does the 7% come from? The professor Horvitz's model was based not on a growth rate per se. It was based upon using the capital above the 10%. Once 10% was satisfied, which citizens had before the breach, the additional supervised regroup would be used for leveraging growth. That derived the volume of incremental assets that citizens would have had. The citizens were waiting for the answer. You're repeating what I just said. Let me, in 1987, citizens had 5% growth and 88% had 5.3% growth

. These are based on tangible asset figures, the record figures that the court has. You still assume the 7% growth rate, comparing the commercial banks, which are very different entities. The 7% base, those were the local competitors, the community banks and drifts, the same market areas and citizens. That was the most direct comparison. The 7% was based on an overall 1989 and 1990 average, because citizens actually shrunk in 1989. If you look at the growth rate and its model, it was overall 7%. But 5% was the growth rate of the peers during the damages period that was sponsored by the government's own experts. There's no dispute that 5% is minimum rates. A little bit of background. Citizens was a traditional mutual threat based in Northwest Indiana. The same key managers for decades had a long history of growth. The part of the findings, though, is that those managers were so conservative they wouldn't have invested this money anyway

. They had an impressive record of study profits and they were conservative in terms of credit risk and capital. They invested essentially in two types of assets. Single-family residential mortgage loans and mortgage-related securities and similar investments. But they had a long history of growth. As I mentioned, they grew in 1879. They prefer a business plan to call for them to at least grow by that same 5% over the next several years. And then the breach came along. It was a massive disruption to their business, taking away 70% of its regulatory capital. It was as well documented, the massive breach directly caused citizens to adopt and follow a no-growth strategy. Instead of growing at the very least and accord with the past plans and performance, and the growth of the peers of 5% to 7% citizens had to rebuild this capital. Let me address the first major legal era. Without citation to any authority, the court below required specific lost opportunities or transactions for citizens to prove causational lost profits

. That's not law. Nor can it be the law in the case of an ongoing high-billion business whose losses are based upon hundreds of transactions like ship and farm, a grocery store, car dealership, or plain vanilla grip like citizens. The ongoing high-billion businesses conduct numerous transactions every day when the size or scope of their businesses is... How much is scanning? Why is that not typical though? Why is that not appropriate in a lost profit analysis? It seems to me that when someone is coming in as they argue, we're not talking about a restitution case or a alliance case, we're talking about lost profits. Why is it not entirely appropriate to look at what possibilities were lost, or not engaged in? It seems to make sense to me in a lost profits analysis. You almost have to do what I would think. This is not the case of an individual product or a specific identified investment opportunity. The entire business is affected. The grocery stores, businesses, operations are restricted. So it had many sales between customers of various types of products or a period

. These cases, because you have some high-volume transactions, you don't have to show the specific transactions you would have had that were made up, a little bit of profit that were carried through through overall profit. These principles are applied in authorities, cited at 63 over a main break-1-del manufacturing, 98 F-355, and 8 circuit case. In our reply, a 14-in-right M-V-N-Col-Tray-Han, 10-3-11-95-5 circuit case, and Bob Willow's Motors, 872-798, a seven circuit case. Citizens are just like the shipping firm or these other high-volume base cases, because they're taking in. We've held deposits from hundreds of customers, making residential mortgage loans to hundreds of customers, and it's buying mortgage-related securities and similar investments. A high-buying business could virtually never meet a specificity test where you have to identify the specific loss transactions. That would only require the injured parties' vote to engage in futile acts simply to bolster a litigation position as was recognized by the seven circuit and Bob Willow's 872-799. Have you been addressed in the California Federal Bank? In terms of the most recent Cal Fed opinion, there, the claim of the bank, was that it would have retained its 24,000 single-family arm loan loans. It would not have sold them absent of breach. That was a specific claim that it had. This is to be tripped at large. But isn't that the problem here that you are about to establish that there was a breach caused lost profits? You're making general statements, but you haven't identified any evidentiary basis to conclude that the breach resulted in the lost profits

. The Winstor trial court decisions that were allowed upon by the trial court here, and were the recent certifying recite of other governments, reject a requirement that you have to show this specific borrowers to whom you would have made loans to earn the profits. The court's argument is a solid indication of how the assets would be deployed. The two categories were laid out clearly at Appendix 201-1971-74. The court simply said that the citizens would have expanded those two categories. This is not the case of a Cal Fed or other high-flying threat that the question is whether whether they were to invest in commercial real estate, commercial loans, consumer loans. The law was a planned and all-threatened and the volume of the skies and scope of its business was restricted because of the breach. It had immediate market opportunities as demonstrated by the peer growth of 5-7%. The peer growth was the peer study endorsed by the government's own experts. Citizens had built-in growth as a threat because of the interest that's quite a domed deposits. The rate of growth was 1.3% and that would roll over and you would have an automatic expansion. That's in the record at 8

.00141-101685. The law, in fact, citizens could have simply purchased large quantities of the same investment securities. The court essentially said of strong. Well, you didn't prove to me that you would have actually made this RTC acquisition or you didn't prove that you would have done a specific transaction. How did it appear that other than by having experts say, well, the growth rate was this and we didn't achieve it so it must have been caused by the breach. We showed what their citizens had a long history of growth. They've grown before the breach of business plans, before the breach study was continued to grow. The breach interrupted that normal growth of at least 5% it stopped growing for years. It shrunk in 1989. It's peers and competitors continued to grow doing the normal business but the court did was look, okay, you haven't shown me this larger growth with the 10% capital ratio and looked over here, you haven't shown me that you would have made a specific RTC acquisition or done a specific transaction. But the court missed the 800 elephants staring right in the front and that's how we established the lost profits in the court of the month. You want to be here? Yes, here will be bottled

. Thank you, Mr. Evans. May I please the court. Citizens' challenge nearly every legal standard and every factual finding made by the trial court in this case. As this court is well aware, a clear error standard applies to the trial court's finding to fact which is an exacting standard, challenging and intensely factual determination on appeal. How can you prove something that didn't happen? They're being asked to show that they didn't invest here, they didn't invest there, well of course they didn't. They didn't have the funds to invest. Well, your Honor, I believe it's not an instance that the trial court required plaintiff, citizens in this case, to prove a negative. What the court did was look at what the plans had had in place. In fact, the citizens did not produce the business plans for the years immediately prior to fire rate. The only indication we have of their planned growth was from a regulators' work paper which indicated that they had planned growth in 1989 of 4%, in 1990 of 4%, in 1991 of 5%. In fact, they did not meet their asset goal growth in 1989

. Not because of fire rate, evidence admitted that the specific contemporary documents indicated that their CFO, Mr. Stevens, told the regulators that in 1989, this was the examination in August 7, 1989, they were not going to meet their asset goal because of the negative publicity of the savings and loan industry, a robust stock market and the shape of the yield curve. Nothing about the fact that they weren't going to have good will because of fire rate. The court also made a factual finding that following fire rate in 1990, the thrift actually grew 3.5%, when it was anticipated or planned growth of 4%. To the extent that the thrift did not grow after that, the court made factual findings that any lack of growth was not due to the concerns for inadequate capital. Citizens attempts to claim that the trial court made a factual finding that Citizens was not entitled to its capital cushion. The court made no such finding. The court in fact noted that they didn't operate with a significant capital cushion and said that they were entitled to a capital cushion. There is no debate about the fact that once fire rate was enacted, Citizens met all of its capital requirements. In fact, in 1989, when fire rate was implemented, Citizens met the fully phased in requirements that weren't necessary to meet until 1994. Citizens had considerable capital following the passage of fire rate and they still did not leverage that capital to grow

. The trial court made a factual finding that there was no concern or that concerns about their regulatory capital did not prevent them from growing prior to the following fire rate. In fact, the trial court made credibility determinations in this regard too. It did not find the testimony of Thomas Pritzbee, chairman of the board of citizens to be credible in terms of his concern that the regulators were going to shut them down for lack of growth. The court credited the testimony of the government regulators would say that Citizens was an excellent threat. In fact, it required very little supervision. In 1992, Citizens had three times the amount of capital required. The court made factual findings in this case as to Citizens' claims of a 10% capital. Citizens would like to minimize the effect of the trial court's factual finding in this regard. However, it is significant. They claim that it was merely an input into Dr. Horvitz's expert reporter's model. It was not. It was the very foundation in Stone of their lost profits claim. In fact, they claim that, well, we were trying to obtain a 10% level of regulatory capital and that when fire rate took the goodwill away, we couldn't grow again until we were back to that 10% regulatory capital fair. The trial court made a factual finding that no such capital goal existed. It did so because there was not a single contemporary news document in any of the evidence admitted trial to indicate that such a goal existed. In fact, the only goals that were reflected in any contemporary news documents admitted into evidence were in fact gap capital or tangible capital goals, neither of which were affected by the phase out of goodwill. So the court's factual finding that there was no 10% capital goal goes to the very heart of their claim that they couldn't grow because they couldn't get back to this 10% capital figure. And it's not just that it's an input into Dr. Horvitz's model. As far as causation is concerned, citizens claims that the court got it wrong in terms of the standard of flight. However, the court applied this court's case recent decision in CalFED, which indicated that more than a substantial factor is required. In fact, the damages plaintiffs must show that the breach produced damages inevitably and naturally cannot just possibly or properly. Citizens go so far as to claim that the trial court imposed some sort of heavy burden on it in order to demonstrate that causation

. It was the very foundation in Stone of their lost profits claim. In fact, they claim that, well, we were trying to obtain a 10% level of regulatory capital and that when fire rate took the goodwill away, we couldn't grow again until we were back to that 10% regulatory capital fair. The trial court made a factual finding that no such capital goal existed. It did so because there was not a single contemporary news document in any of the evidence admitted trial to indicate that such a goal existed. In fact, the only goals that were reflected in any contemporary news documents admitted into evidence were in fact gap capital or tangible capital goals, neither of which were affected by the phase out of goodwill. So the court's factual finding that there was no 10% capital goal goes to the very heart of their claim that they couldn't grow because they couldn't get back to this 10% capital figure. And it's not just that it's an input into Dr. Horvitz's model. As far as causation is concerned, citizens claims that the court got it wrong in terms of the standard of flight. However, the court applied this court's case recent decision in CalFED, which indicated that more than a substantial factor is required. In fact, the damages plaintiffs must show that the breach produced damages inevitably and naturally cannot just possibly or properly. Citizens go so far as to claim that the trial court imposed some sort of heavy burden on it in order to demonstrate that causation. That certainly is not the case. The court was making reference to this court's decisions in Glendale and CalFED, which had indicated that lost profits had proven to be a difficult claim for plaintiffs in the Winsdark cases to prove. The trial court, citizens claims that the trial court somehow found that leverage was not valuable and that the goodwill had no value. Certainly, the trial court made no such finding. The trial court, in fact, noted that leverage has potential for value to the extent that there are opportunities in which the threat can invest and earn profits. Leverage only gives rise to potential profits. Citizens claim in this case is similar to that of plaintiffs in the Granite Management case, in which this court issued a decision last year. In fact, following FIRIA, Granite in that case never attempted to raise or replace the lost goodwill. The trial court has a matter of law that the thrift suffered no damage, whatever, from the loss of over a quarter of a billion dollars and contractually guaranteed capital or goodwill. This court responded that no, the trial court did not hold that the government's breach of contract caused granted no damage, but held only the far different point that Granite had failed to prove its damages. That's exactly what occurred in this instance here on. The plaintiff in this case failed to prove that in fact it could not grow and that it lost lost profits

. That certainly is not the case. The court was making reference to this court's decisions in Glendale and CalFED, which had indicated that lost profits had proven to be a difficult claim for plaintiffs in the Winsdark cases to prove. The trial court, citizens claims that the trial court somehow found that leverage was not valuable and that the goodwill had no value. Certainly, the trial court made no such finding. The trial court, in fact, noted that leverage has potential for value to the extent that there are opportunities in which the threat can invest and earn profits. Leverage only gives rise to potential profits. Citizens claim in this case is similar to that of plaintiffs in the Granite Management case, in which this court issued a decision last year. In fact, following FIRIA, Granite in that case never attempted to raise or replace the lost goodwill. The trial court has a matter of law that the thrift suffered no damage, whatever, from the loss of over a quarter of a billion dollars and contractually guaranteed capital or goodwill. This court responded that no, the trial court did not hold that the government's breach of contract caused granted no damage, but held only the far different point that Granite had failed to prove its damages. That's exactly what occurred in this instance here on. The plaintiff in this case failed to prove that in fact it could not grow and that it lost lost profits. In fact, as far as the plaintiffs expert in this case, Dr. Horbits was all over the board. He said, well, they could have acquired RTC acquisitions. They could have acquired another thrift. They could have just bought more mortgage back securities in the same proportions that they would have. He said he also testified that they could have had different proportions. There was no reasonably certain measure of damages in this case. In fact, the court found that Dr. Horbits's model was fatally flawed for just those reasons. In fact, the court focused on four specific reasons. The court found that the model was based on an unsupported assumption that the court had made a factual finding that the 10% regulatory capital did not exist. Also, the court's assumptions as to growth in the model were speculative and not supported by the contemporaneous documents

. In fact, as far as the plaintiffs expert in this case, Dr. Horbits was all over the board. He said, well, they could have acquired RTC acquisitions. They could have acquired another thrift. They could have just bought more mortgage back securities in the same proportions that they would have. He said he also testified that they could have had different proportions. There was no reasonably certain measure of damages in this case. In fact, the court found that Dr. Horbits's model was fatally flawed for just those reasons. In fact, the court focused on four specific reasons. The court found that the model was based on an unsupported assumption that the court had made a factual finding that the 10% regulatory capital did not exist. Also, the court's assumptions as to growth in the model were speculative and not supported by the contemporaneous documents. As the court had indicated, the plaintiff would like the court to believe that the growth anticipated by Dr. Horbits as an unsupported model was only 7%. Well, that's if you take it all the way back to basically 1988 through the 1993 timeframe. In fact, the amount of growth anticipated by Dr. Horbits' model in the first year in 1990 following fire was 16.5%. It was almost 11% the year after that. Citizens never grew at that rate. They never had that double-digit kind of growth in their business plans. Now, when asked about this at trial, their officers said, well, we only put four or five percent in our business plans because we didn't want to be criticized by the regulators for excessive growth. The fact is that contemporaneous documents did not support the kind of modeling or assumptions as far as growth was concerned that plaintiff's expert had in this model. Mr

. As the court had indicated, the plaintiff would like the court to believe that the growth anticipated by Dr. Horbits as an unsupported model was only 7%. Well, that's if you take it all the way back to basically 1988 through the 1993 timeframe. In fact, the amount of growth anticipated by Dr. Horbits' model in the first year in 1990 following fire was 16.5%. It was almost 11% the year after that. Citizens never grew at that rate. They never had that double-digit kind of growth in their business plans. Now, when asked about this at trial, their officers said, well, we only put four or five percent in our business plans because we didn't want to be criticized by the regulators for excessive growth. The fact is that contemporaneous documents did not support the kind of modeling or assumptions as far as growth was concerned that plaintiff's expert had in this model. Mr. Evans, what is the applicability or distinction of this case and the home savings case? Your Honor, the home savings case is significantly different. In home savings, they, the Thrift operated with the capital question of between two and a half percent. Following Fireia, the Thrift actually raised capital on five different occasions and the trial court found that the purpose of that, those capital raisings, at least in part, was to make up for the lost goodwill. And in fact, awarded the court its costs associated with those capital raisings. Are you saying in this case, for example, if citizens had gone out and attempted to raise capital to bring up its capital reserves up to the 10 percent level that they discussed, that perhaps the cost of raising those funds could have been asserted, that's it. That's a damage resulting from the breach. Yes, it could have, Your Honor, that plaintiffs could have brought that type of claim, which was the claim basically that the Thrift and Cal Fed brought, which was that they needed to raise capital replaced the lost supervisor of goodwill, and I believe in that case, they were awarded 23 and a half million dollars for the transaction costs associated with raising that capital. That was not the case here. Citizens had numerous damage claims. They had cost of replacement capital claims that were hypothetical, which this court has rejected on numerous occasions. They had restitution and reliance damages claims for the net liabilities assumed, again, which this court has rejected numerous occasions. They also had another reliance damage claim that on the eve of trial, they abandoned two months prior to trial, which left them with the lost profits claim of nearly $21 million, predicated on the model that Dr

. Evans, what is the applicability or distinction of this case and the home savings case? Your Honor, the home savings case is significantly different. In home savings, they, the Thrift operated with the capital question of between two and a half percent. Following Fireia, the Thrift actually raised capital on five different occasions and the trial court found that the purpose of that, those capital raisings, at least in part, was to make up for the lost goodwill. And in fact, awarded the court its costs associated with those capital raisings. Are you saying in this case, for example, if citizens had gone out and attempted to raise capital to bring up its capital reserves up to the 10 percent level that they discussed, that perhaps the cost of raising those funds could have been asserted, that's it. That's a damage resulting from the breach. Yes, it could have, Your Honor, that plaintiffs could have brought that type of claim, which was the claim basically that the Thrift and Cal Fed brought, which was that they needed to raise capital replaced the lost supervisor of goodwill, and I believe in that case, they were awarded 23 and a half million dollars for the transaction costs associated with raising that capital. That was not the case here. Citizens had numerous damage claims. They had cost of replacement capital claims that were hypothetical, which this court has rejected on numerous occasions. They had restitution and reliance damages claims for the net liabilities assumed, again, which this court has rejected numerous occasions. They also had another reliance damage claim that on the eve of trial, they abandoned two months prior to trial, which left them with the lost profits claim of nearly $21 million, predicated on the model that Dr. Corvitz had submitted. In contrast to home savings, and one of the things that the home savings board, in fact the Federal Circuit noted, was that the Thrift in home savings was not attempting to recover profits based on the leverage of that goodwill. It was merely attempting to replace the costs associated with actually raising that capital, and I think that Thrift's that brought those types of claims have been successful in the Wynne Star arena, because the court is focused on the actual costs associated with replacing that goodwill. All of the hypothetical models, I believe, have been rejected by this court. That was not citizens' claim in this case. Thank you. And two other reasons why the court made factual findings as to Dr. Corvitz, why Dr. Horvitz's model was not reasonably certain, is that he assumed without support that profitable law opportunities were available, and that there was no evidence regarding the foregone assets. In fact, their own documents, admitted into evidence, indicated, and this was in 1992, that they were having difficulty finding investments at the normal spreads. This was in one of their board of directors' minutes. Their documents also indicated that they did not need capital

. Corvitz had submitted. In contrast to home savings, and one of the things that the home savings board, in fact the Federal Circuit noted, was that the Thrift in home savings was not attempting to recover profits based on the leverage of that goodwill. It was merely attempting to replace the costs associated with actually raising that capital, and I think that Thrift's that brought those types of claims have been successful in the Wynne Star arena, because the court is focused on the actual costs associated with replacing that goodwill. All of the hypothetical models, I believe, have been rejected by this court. That was not citizens' claim in this case. Thank you. And two other reasons why the court made factual findings as to Dr. Corvitz, why Dr. Horvitz's model was not reasonably certain, is that he assumed without support that profitable law opportunities were available, and that there was no evidence regarding the foregone assets. In fact, their own documents, admitted into evidence, indicated, and this was in 1992, that they were having difficulty finding investments at the normal spreads. This was in one of their board of directors' minutes. Their documents also indicated that they did not need capital. In 1993, Thomas Prisbee said, told a regulator, and this is, again, one of the regulators' work papers that was admitted into evidence, that we're not contemplating conversion because we don't need the capital. They had plenty of capital. They just lacked their opportunities to deploy that capital properly. As far as the fourth problem with Dr. Horvitz's model, and the reason why the court rejected is not being reasonably certain, is that because it was contrary to basic economic principles, it was fundamentally flawed because it assumed that the thrift could grow as much as possible, and there would be constant return on investments. In fact, it would constantly make 1.1% return on any and all investments that made, regardless whether it was mortgage-backed securities, regardless whether it had tried to acquire other thrifts or RTC acquisition. As Dr. Horvitz testified in trial, they could have acquired RTC acquisitions. As we presented in trial, the evidence showed that of all the RTC thrifts that were available, RTC assets that were available in Northern Indiana during these years, there were only four RTC acquisitions, and only one of them in the area in which citizens operated, and in fact that was only a $7 million institution. The evidence also indicated that citizens had tried to expand into Illinois prior to the breach. In 1988, there were documents, contemporaries documents indicating that they attempted to expand into Illinois, that those expansion plans were not successful, and that they in fact had no further plans to expand into Illinois

. In 1993, Thomas Prisbee said, told a regulator, and this is, again, one of the regulators' work papers that was admitted into evidence, that we're not contemplating conversion because we don't need the capital. They had plenty of capital. They just lacked their opportunities to deploy that capital properly. As far as the fourth problem with Dr. Horvitz's model, and the reason why the court rejected is not being reasonably certain, is that because it was contrary to basic economic principles, it was fundamentally flawed because it assumed that the thrift could grow as much as possible, and there would be constant return on investments. In fact, it would constantly make 1.1% return on any and all investments that made, regardless whether it was mortgage-backed securities, regardless whether it had tried to acquire other thrifts or RTC acquisition. As Dr. Horvitz testified in trial, they could have acquired RTC acquisitions. As we presented in trial, the evidence showed that of all the RTC thrifts that were available, RTC assets that were available in Northern Indiana during these years, there were only four RTC acquisitions, and only one of them in the area in which citizens operated, and in fact that was only a $7 million institution. The evidence also indicated that citizens had tried to expand into Illinois prior to the breach. In 1988, there were documents, contemporaries documents indicating that they attempted to expand into Illinois, that those expansion plans were not successful, and that they in fact had no further plans to expand into Illinois. Again, these were contemporaneous documents that were admitted into evidence that formed the basis for the trial court's factual findings, that there were indeed no lost opportunities here, that citizens was not able to take advantage of because of the loss of goodwill. Citizens asked that the case be remanded for the trial court to make some sort of jury verdict award. However, in order for a jury verdict award to be made, a jury verdict is not utilized unless clear proof of injury exists, and the trial court has made factual findings that in fact no clear proof of injury does exist, and in fact the factual findings of the trial court would have to be reversed in order to have a jury verdict in this instance. The trial lasted a month, the trial lasted a month, it was four weeks, and plain to say 43 hours to put on the jury. Thank you, Your Honor. For the reasons in our case, no state of here, we asked for a firm decision to apply. Thank you. Can you? Most of the facts referred to by the government were not the basis for the court's decision below, and therefore it would require this court to engage in fact funding over to these times to support the decision below. But more importantly, as to the court made no findings, and this is why the court's independent business decisions, rationalist legal error, it made no findings that government never proved that other factors served as an intervening cause for a citizen's lack of the normal internal 45% growth. There was nothing. The court never found that citizens would have stopped growing, absent the breach. This was a massive disruption in citizens' business and hostile rebels for environments where 30% of the industry had just failed, and forced citizens to adopt the no-bro strategy and it stopped growing

. Again, these were contemporaneous documents that were admitted into evidence that formed the basis for the trial court's factual findings, that there were indeed no lost opportunities here, that citizens was not able to take advantage of because of the loss of goodwill. Citizens asked that the case be remanded for the trial court to make some sort of jury verdict award. However, in order for a jury verdict award to be made, a jury verdict is not utilized unless clear proof of injury exists, and the trial court has made factual findings that in fact no clear proof of injury does exist, and in fact the factual findings of the trial court would have to be reversed in order to have a jury verdict in this instance. The trial lasted a month, the trial lasted a month, it was four weeks, and plain to say 43 hours to put on the jury. Thank you, Your Honor. For the reasons in our case, no state of here, we asked for a firm decision to apply. Thank you. Can you? Most of the facts referred to by the government were not the basis for the court's decision below, and therefore it would require this court to engage in fact funding over to these times to support the decision below. But more importantly, as to the court made no findings, and this is why the court's independent business decisions, rationalist legal error, it made no findings that government never proved that other factors served as an intervening cause for a citizen's lack of the normal internal 45% growth. There was nothing. The court never found that citizens would have stopped growing, absent the breach. This was a massive disruption in citizens' business and hostile rebels for environments where 30% of the industry had just failed, and forced citizens to adopt the no-bro strategy and it stopped growing. But for that reason, there was no finding to the contrary for that type of growth. A judge on the intents of home savings. Home savings is directly applicable here because the court below home savings by the Federal Circuit came out after the decision below. The decision below may have repeated undue emphasis on citizens' post breach capital compliance. All of that is irrelevant in under home savings because the decision to maintain a capital cushion absent the following of the breach is not an independent business decision, and that's what citizens did. In fact, during 1990 and 1991 citizens' capital was deemed marginal by the regulators and admitted by the government. Yet there are no damages awarded for this time period. Citizens' capital ratios, this cushion was below the peers, below the peers' groups sponsored by the government, and the government's own expert admitted that per se if you below the peers that is unread unreasonable. But in home savings, there was no claim for loss of leverage. Now, for the principle is the same in terms of whether citizens had sufficient and insufficient capital and had insufficient capital to grow, and that leads to another error of the court made below. But this is different claim. Different issue, different series or requires different sets of proof, and that gets us back to the evidentiary record here and the findings that Judge Raider pointed out repeated findings that they were to say, you're proof

. The citizens presented, Professor Horvitz, that citizens could have grown strongly by maintaining its 10% capital cushion and growing above that. Alternatively, Professor Horvitz testified that witnesses testified that were grown at least by its past performance of 5%, which is what the peers did by that amount. The government's expert admitted that citizens were so good at earning money doing its playing in vanilla business, and that business was directly interrupted by the cause of the breach. And for that, that should be the basis for reversal deal we ask for reversal on causation when instructions asked reasonable serve to in terms of the fair and reasonable approximation standard to apply, and at least a jury verdict to be mandated. Thank you. Thank you, Professor Scaniel. Our next case is consolidated