Legal Case Summary

I'm going to pick up core communications versus Verizon and Mr. Gleason, start us off here. Thank you, Honourary. Please the court. I represent core communications in this case. My name is Ralph Gleason and sitting at Council table with me is Chris Van DeVurg, who is Internal Counselor for Core. We are here to ask this court to find that the district court was correct when it found that an ex-copatory clause in the contract between core and Verizon did not apply and aired and reversed in itself and also aired and find the core may not exceed and its tort claims against Verizon. I think that this court is well aware of the procedural history of this case, but this court has found in 2010 that core Verizon breached the Interconnection Agreement and the question it is whether or not core may receive damages from its breach. Verizon argues that there is an ex-copatory clause in Section 26 of the Interconnection Agreement, which prevents core from receiving compensatory damages, which are the bulk of course damages in this case. Now, I want to make the court aware that this case reaches beyond the disagreement between just core and Verizon. Verizon is arguing that this ex-copatory clause keeps it from having to pay any compensatory damages for a failure to interconnect, which is the basic, what it has to do under this contract is interconnect. It then it has to provide services and accept services from the competitive local exchange character, excuse me, carrier. If it does not have to pay damages, then Verizon or any incumbent lack may choose just not to interconnect without fear of having to pay anything for its failure to interconnect. And that is obviously an illogical conclusion to this case, but it could happen. It doesn't have to be Verizon. It can be any I-lect. And that would frustrate the statute and would stop the competition that the ex-design to encourage. However, the reason that we're arguing that that ex-copatory doesn't, a clause doesn't apply or three reasons. One, a reading of the statute itself shows that it does not apply in a case when interconnection is, when the duty to interconnect is breached. Second, the Maryland law does not allow an ex-copatory clause in this case, though it is ex-copatory clauses are allowed under Maryland law. And lastly, Verizon failed to plead this ex-copatory agreement, which is an affirmative avoidance and required to be pled by Rule 8. You know, this court found that Verizon breached the contract by failing to interconnect under 27.1 of the agreement. Verizon is arguing that the ex-copatory clause in Section 26.2 of the agreement applies. The reading 27.1, it has its own remedy for breach, and that is in Section 27.3. And 27.3 says that the penalties that might be appropriate shall be resolved through a competent process to a court of competent jurisdiction. Now I have left out some parts of that, but it does say that. Now Verizon has argued, well, it also says right before that you can go to a court of competent jurisdiction to redress your issue, you have to have a statistically significant error rate in order to and reports of errors in order to be able to go to a court under 27

.3. Well, again, we're not talking about the traffic back and forth over the network. We're talking about forming the network, the interconnection. And because we're talking about the forming of interconnection and this court found that they breached that interconnection, Verizon in this case breached the contract 100% of the time. And that is statistically significant error rate. This is, again, a binary system. The interconnection happens or it doesn't, and there can be no statistically significant, or statistical analysis in that. So the 27.3 section is what applies here, not the 26.2 in Verizon's argument fails and we should be allowed to go forward. Further, if one reads 26.2, I mean, section 26, the first part, 26.1, accepts out 27, which is exactly where this court found the breach. Second, the interconnection, 26.2 talks about failures and telecommunication services. Interconnection is not a telecommunication service. That's Global NAPS versus Belatvang, New Jersey, which is predecessor to Verizon. It's also competitive telecom versus FCC. They have ruled that interconnection is not a telecommunication service. It's the traffic, the flow of traffic and the torrentation of traffic that is a service. Verizon has argued that, okay, we agreed that the cases say that it's not a telecommunication service and that our courts have said that that has a specific definition, but it is nonetheless a service. Well, we disagree with that in your honor. Think of it as core living on one side of a river and Verizon living on the other and interconnection as a bridge. One way to look at it is that they have to work together to build a bridge and the government and the interconnection agreement, government through statute and interconnection agreement itself say that they have to build that bridge. So it is not a service that one provides to the other. Yes, sir. The initial reservations I had about your case was these darn tort claims. And I don't know how you think you can bring those because this relationship is framed by a contract and it's a very highly reticulated contract and it's a comprehensive contract in which the parties appear to kind of play all sorts of the ventualities. And the breach of a contract just isn't a tort. And yet over and over again we have these tort claims and if part of the reason parties contract is to give some definition and framework to their obligation so they'll know what they can expect if they go into court. So why couldn't you just proceed with your contract claim and deal with it as a breach of contract and talk about the contractual remedies without bringing in all these torts? You're asking why any plaintiff might give up causes of action which it believes it fairly holds under the law and we do and which might also prevent a competitor from doing that type of act in the future

. If we can win on a tort claim and convince a jury that there was malice and thereby get punitive damages when you may stop Verizon and other Ilex from dealing with the small sea legged. You get consequential damages if there's malice. You're going to mean the consequential damages are pretty significant in their own right. But the consequential damages are what we heard argue about in the contract portion of this claim, your correct your honor. The only thing we get extra for the torts, assuming that the contract case goes for the only thing we get extra is if we get punitive damages on the torts. But Maryland law controls. That's very troublesome when parties enter into contracts. It would up in commercial life if they thought that there was a breach of that contract that they were subject to open-ended punitive damage. It destroys a very nature of contract which is to provide some outer limits and some sort of definitions to the rights and obligations of each of the contracting parties. And then you just, you know, torts a wide open area. It has its places, particularly injuries between strangers and particularly business injuries in the absence of a contract. But where you have a contract that's as detailed as this one is. And, you know, these were two business parties. They weren't naive. They were sophisticated business parties. They negotiated the contract. And then here we see these torts claim. I understand your honor's concern. And I- There are also sophisticated parties with high-prior lawyer. Yes, Your Honor. However, this- they did not- were not required to enter into this particular contract. They chose to enter into it because the way, as you remember, the way this happens is if you see a contract you like, you can say I want that. So rise in the action. Well, good if you're negotiating a contract and being represented by Council if we're just going to have a breach become some kind of torquing. Well, I mean, why go through the- why go through the exercise? Well, Your Honor, we're looking at Maryland law. And Maryland law says that you can have a torquing claim if the breach is also a torqued. They can be- but they have to be if so intertwined that one cannot be viewed in isolation from the other. So the question isn't whether or not the breach arises- I'm not saying, I mean, I don't understand the principle of limitation. Well, I understand, Your Honor. What we're not saying that the breach is a torqued. We're saying that them lying to us is a torqued

. That them concealing information from us is a torqued. So the breach we can recover under- Always carbunkle something else. Well, we were misrepresented. Something was misrepresented to us in the course of the breach. And therefore the breach becomes a torqued. Well, I understand that. But in its finding the torqued. I mean, it's hard to overestimate the havoc that this kind of thing would play with commercial relationships. And I don't understand it. And there are a lot of people, a lot of litigants who come before the court. And I find that in argue the contract, that's a better atmosphere. And there are arguments seem to me a whole lot more persuasive when they argue in terms of what they negotiated, in terms of the written contract. And it present very effective cases. But these, these, these, all the things. And that's what I obviously led with this morning, the honor was the contract. And I would tell you that if we were here looking at four-circuit law, I would be reluctant to bring these torqued claims. But we are here under Maryland law. And I believe that they're allowed in this court has to look at this case, even given its reservations under Maryland law, which can allow them given the facts, if the facts are correct and the facts in this case. And as used in Verizon too. We've got a contractual term. It makes them liable for consequential damages in the event that there's malice, right? Yes, Your Honor. And then, now, you need to tell me factually why you think there's, why you think there's malice on the part of Verizon. Your Honor, Verizon refused to interconnect core quickly. No, they were specifically asked to. Verizon stated that they had a concern about equal inequality connection that they never presented to core until after the lawsuit was began, meaning not at the point. And part is that they're apparently an ordinary breach of contract and malice. They're not wanting the same thing, are they? No, you're not. So show something more than an ordinary breach. And why did Verizon's conduct and I want to go about apologize, Your Honor? And I want to say that for the breach, and malice is not required, but intent is. So to the extent we're parsing, I don't mean to do that, but it can be an important. It, Verizon's conduct, including Verizon telling core that it could not connect core at the locations requested because there was another customer of record core specifically wrote a letter to Verizon asking who the customer are saying that we were going to find out who the customer record is so we can talk to them about allowing us in there

. And then finding out later the core was the customer record shows. What was the response to the request to find out the identity of the other customer? Say again, sorry. What was the response from the vendor? There was no response, Your Honor, much like our request interconnect, much like our request to allow us into a loop connector, which they said eventually said we didn't allow you to connect to because less from quality, but they just didn't respond and they just didn't connect. It is clear that they tried to delay. And how long did it take? You had a council, questions to you as to why you might surprise that you're so timid. You, when you bring it actually on the Merlin Law for a tort, question you is why you hear Father Nick Fortwood that and you need to say why you are. How long did it take them? After they told you that there was a retail customer connected. There was. And you said, well, can you give me the name? So perhaps we can negotiate how long did it take for them? They never gave. And how long did it take? And it took. How long was that over? It was, well, we got connected in four months and it was two years later when the case was about to go to travel for the PSC when the, we found in discovery and I say we was not involved in the case time. We found in discovery from one line on one page out of hundreds of documents the core was in fact a retail customer. From which you, you, you can tend, you can infer mail is correct. That is our contention, Your Honor. Right. Well, that is when you need to argue. You seem to be determined about it. That is why you hear on the tort. Well, on the tort claims your right, Your Honor, and we believe that Verizon's conduct was reprehensible in this case. Well, your man, Mingo, kind of undercut you, didn't he? I don't believe so, Your Honor. I think that some of his testimonies been quoted by Verizon, but not all of it. He has said in. Go out of context. Well, not so much out of context, but not quoted without all of the context. He has said. He's, he's your, how much? Yes, sir. He is the president of the company and the main person, but he has said in the past that core of Verizon definitely intended to delay the case. Is he excopated Verizon? Great extent. I don't believe that's correct, Your Honor. I don't want to argue with the court if that is your finding, but he has also said that Verizon specifically intended to delay the interconnection. And that when asked about that, he said if it looks like a duck and quacks, like a duck, it's a duck, meaning if somebody is going this far out of their way not to connect us, when we ask to connect us and lie into us about us, about it, they are intending to delay the connection

. I see my time is up, I'll finish in the book. You can use the answer, I mean. Yes, sir. William Trudjick. But I don't believe he undercuts at all. He basically just said that he agreed that he did not know what Verizon knew. But it's clear, and Verizon argues that one section, one division of Verizon doesn't know what the other division is doing, the retail and the wholesale people don't know each other, and that's why we didn't tell you. That's fine, until. I have big corporations and things like the government. And that's fine, Your Honor, until August. Not everybody knows what everything is going on. And that's fine until August 20th of 1999, that is when Mr. Van DeVerk sent a letter to a coer saying, you've told us that there's a customer record, you've told us that somebody other than us. The two approaches was about four to six months. Correct, Your Honor. We're not talking about a period of years or whatever. Not in this case, Your Honor, but if we're not allowed to go forward on contract claims. This is the one that we have to decide. What is, I mean, five, four to six months indicative of a sort of a gree just misconduct? It's, of course, already found the breach that they have the misconduct and that they breach this case. We're not here about that. The question, again, when you get to the Maryland side of the law is whether or not there was intentional, but it's not just intentional. It's public service. It's what does the contract to say and did they bring it up in time because they did not raise this issue for 11 years. Thank you, Your Honor. Mr. Angstray? Yes, Your Honor. Thank you. Thank you, Your Honor. I'd like to start where Mr. Glieden did with section 27.3

. Those claims have been completely waived. After the judge ruled on reconsideration, Judge Mott, he said to the parties, I think it would be efficient for you to agree on the limited amount that chorus and tile under my ruling so that you can appeal those rulings. But if you don't agree, and this is on page three of the special appendix, if you don't agree, please advise me. I will hold a conference to set a schedule for the remaining proceedings in this case. If Court had any arguments about section 27.3 and damages due to it under that section, that was the time to raise them. Court didn't raise them. It agreed to a $1 judgment, glittered, and could appeal the rulings the judge actually reached. There is nothing in either the summary judgment. That's a sketch of an order that mirrored what the Court ruled. It's not conceding to what. Obviously, the whole case was about damages. Judge, listen, you need to sketch an order that will accurately mirror what I've ruled. You have to agree on that. You'll say that because they put that in there which reflected the judge ruling, their way damages. We had asked the judge on summary judgment. We said they have no evidence other than that. What was he requesting you all to write an order or was he a question that he'd go settle? He was, I think, what he was doing was requesting that he, I think he figured. You're saying that thing was a settlement agreement. It wasn't a settlement agreement. They were litigating. You're on. But he made a ruling and said, you all come up with an order. Right. And that's what lawyers do. A lot of judges do that from the bench. You're on a, if I'd rule and sell the lawyers to write up an order conformity there with. You're on a, if he had thought that that would mean they waived the right to pursue an appeal. I'll, I'll try one more time. I mean, it will not be worth anything, but they have the right to try it. Well, they have the right to appeal his ruling that the exculpatory or section 26

.2 bars them from recovering consequential damages. They absolutely have the right to appeal that. But their claim goes beyond. Their claim is that somehow it's sides the consequential damages. And there is no exception in section 26.2 for section 27. Besides the consequential damages, there's some other kind of damages they're entitled to get. They had no evidence of that before the district court. That's what we said. We said, therefore, they get only nominal damages. I think if Judge Monson wanted to award them nominal damages, he would have ordered them one dollar. You're saying they settled. They settled that bit of the case. Yes, Your Honor. There was a settlement after the Judge ruled. Is that what your position is? I think the Judge offered them the opportunity to have further proceedings on damages. They did not take that opportunity. They chose instead to sign on to a judgment that we drafted that gave them only a dollar. Well, how come nobody ever characterized it as a settlement and wrote it down as a settlement agreement? I mean, if that's if the audience were to negotiate no settlement agreement, that looks to me like I would have said so. Your Honor, we were certainly negotiating. If they were to want to condense an order in conformity with the judges ruling, it's another matter. I'm not going to try for that. I think if you look at page special appendix 3, you'll see that the Judge did not dictate the particular outcome and left it to the parties to choose whether to write a judgment or whether they try and have further proceedings before the Judge. And they chose the Judgement not further proceedings. But in any event, they never argued section 27.3 below. They never argued statistical significance below. And they misconstrued the entire contract. If you look at section 27.2.1, it says that Belantic Maryland or Verizon Maryland's performance is going to be reported and adjudicated or judged based on the front in the entire state of Maryland with all of the competitors that it's interconnecting with

. And I'm not sure why, but this isn't in the joint appendix. But the performance reports specifically list competitor trunking. That is the trunk, the facilities that carry traffic past each other. So if there was some argument about statistical significant violations, they could and should have made it below before they describe it. But most importantly, section 26.2 is not Carvouth section 27. These parties, these parties, core. As Mr. Gleaton said, picked off the shelf, they said, this is the agreement I want. It has a bar on consequential damages. They picked this contract, not Verizon. They didn't have to pick this contract. They could have said to the Maryland Commission, I want every bit of this contract but section 26. And we would have litigated. If you're saying it should be construed against them then. It doesn't be constructed against them. I think the rule or the primary draft or something. They lose on the plain language. I don't think there's any construction necessary. Section 26.2, unambiguously barges consequential damages in breach of contract claims. And in negligence claims. It carves out intentional ports and gross negligence. But in a breach of contract claim and a negligence claim, consequential damages are barred. That's entirely consistent with Maryland law, which says you can't buy contract in some instances completely eliminate negligence liability. And you normally can't limit, you can't eliminate liability for gross negligence and intentional ports. So as you read the Ex-Culphatory clause, you could have delayed for five years telling them, oh, you know, there's a retail customer connected and you can't connect. You could have played cat miles for them for five years as we found you in breach before. You're on. And there would be no consequences. The consequences would be severe and drastic for my client if they did that

. The Maryland Commission and the Federal Communications Commission have substantial regulatory sanctions up to and including the ability to deprive my client of the right to sell long distance service to the customers in the entire state of Maryland. The Council, but that doesn't help the person who you wrong. God, that is a sufficiently severe sanction that it would make any carrier. I think that's why. The addition to the making hold of the person you wrong. What I can tell you is that when the Federal Communications Commission was presented with the same issue and it looked at a clause that precluded consequential damages for breaches of the interconnection agreement and a competitor said there should be an exception to that for violations of statutory duties like the statutory duty to interconnect. The FCC said that competitor's proposal was commercially unreasonable and rejected it. So we know that the Federal Communications Commission does not think there is anything wrong with a provision like section 26.2 that is voluntary agreement and protects course. If the court breaches the contract, Verizon can't go after the court for consequential damages. This is a mutually agreed upon bilateral provision that is recognized and permitted under Maryland law. It's permitted under federal law. And then there's an exception for intentional misconduct. We think only. Tell me, tell me the question I had, the public service commission. I found the facts. And they found that it would have been very technically feasible to connect to the existing OC-12. And that you never initially claimed in declining the immediate connection that there was going to be a diminution in quality if an existing connection rather than a new connection was utilized. And you didn't disclose to the court the fact that you had a customer record. And why don't do all of those PSC findings? Tell me why in your view. You don't think they are tantamount to intentional misconduct. I will tell you, John, but first I'd like to point out that I don't read section 26.2 to not apply or to exclude from its scope, supposed intentional breaches of contract under the Maryland law that this is following. And it's the Wolf case, which sites the statement of contracts in a case applying it. What's prohibited is using a contract to eliminate liability for gross negligence and intentional torts under Maryland law carriers and parties. It's the elite case, which is 620 HD. But if you don't think an intentional breach of conduct is intentional misconduct. I don't think that's what it's meant to capture because again in Maryland, you are allowed to limit liability in this way for alleged intentional breaches of contract. And that's 620 A2D, A2D, 1372 at 1379 to 80. But even if that were the case, even if 26.2 excluded from its scope, intentional breaches of contract

. Verizon had a policy based on the way it ran its own network in order to protect its own customers. You have to remember that these interconnection facilities, they're used by thousands or tens of thousands of people to carry all sorts of calls. Whereas the wire that runs to your house or my house obviously just serves us. If you failures are horrible and obviously carriers strive to avoid them, but a failure that affects my line affects me. A failure that affects a line that connects two networks or two major switching centers within a network affects tens of thousands of people. Verizon engineered those interconnection facilities to a much higher standard within its own network. And for the three years prior to core attempting to get interconnection, this was the way Verizon was doing it with every other competitor in Maryland. Right, East Spire, who core was buying service from in 1997 to provide the same services it would provide once it switched over to become a competitive local telephone company, was interconnected in that same way. Verizon had a quite reasonable view that this was the way a telephone company should operate to ensure that those high capacity multi-user connections were redundant and safe. But you've reached the contract. We were found to I agree your honor. Right, so they have questions whether or not it was intentional or breach. And I'd point out the hearing examiner found that our breach was because we refused to amend the contract. The Maryland commission found that our breach was because we refused to accept the course request as a waiver of the contract. This core found that we breached the contract, the district core found that we didn't. I don't think you could find that Verizon having that policy and that belief about the appropriate way to interconnect was malicious. The intentional misconduct phrase has got of something more than a simple breach. There has to be a difference between those two concepts. And the district court says, okay, there's been an adjudication of a breach. But there has to be something that really something of a greater nature to rise to the point where consequential damages are awarded. That the exception and that the exclusion of consequential damages in what I guess is 26.2 is meant to be an exception rather than a rule. And that it's historically been the case that limitations on consequential damages are permissible. They're legitimate provisions. The Public Service Commission permits them. So the real question here is a judgment call as to whether the behavior in this point was sufficiently egregious to bring in the exception. But it is supposed to be an exception. It's not supposed to cover the normal situation. So tell me just in plain language why this is a garden variety breach. I mean, there was a disagreement. But it's the law of the case now as a result of our previous decision that there's been a breach. So your burden is to say why it's the garden variety breach as opposed to something that bumps up several levels to the point where consequential damages are awarded. And I'd like to just tell me in plain terms why your clients contact is not egregious. Because that's the whole bottle of water. Absolutely, honor. So as to the policy that said we're going to use dedicated facilities and not retail facilities for interconnection. That's something that Verizon had done successfully with other competitors in Maryland and other states prior to 1999. It was how eSpyer, for example, was interconnected. Yes, there was obviously a disagreement and we lost on that disagreement though in a variety of ways along the way. Although most recently core sites are a more recent decision from the Maryland Commission which found that our policy was not actually in breach of their Damascus agreement. So I don't think you can look at the fact that Verizon had this policy and suggested it was doing a fairies. Well, there's a difference. Can you have a habit of doing this? Well, we had a policy because it was the way Verizon's engineers thought telephone networks should be built for the benefit of customers. And that's, I think it may be a turned out, it violated the contract but I don't think having that policy is an anyway interesting. That's right, it does violate the law when your policy runs counter to your duty to interconnect with local telephone carriers. I agree with you. Now in that way. That's why you can't hide under your policy to say we're going to effectively write that out. And I think you're going to leave this continued answering judge Wilkins. I was, I was, my point, your honor is it was a good faith disagreement. There is no evidence that Verizon adopted that policy with an intent to hinder or delay competitors to the extent it was a breach. Companies disagree about what their contracts mean. The problem with the problem was not your difference in how you connected retail and commercial. The gravity is whether or not you purposely abort it. And did not or conceal the fact that you were telling them on one hand, oh, we can't connect you because there's a retail customer connected, presumably knowing all along that they were the customers and could have done so. That's the question. Let me get to that. Why is that not just lying? So, well, first of all, you're honest, they withdrew their claim of affirmative misrepresentation. It's in footnote two of the judge's opinion and that's at page 628 of the joint. Just a stone for the surf that there's no waiver. Just answer that question. Why is that not evidence? There's no waiver

. So your burden is to say why it's the garden variety breach as opposed to something that bumps up several levels to the point where consequential damages are awarded. And I'd like to just tell me in plain terms why your clients contact is not egregious. Because that's the whole bottle of water. Absolutely, honor. So as to the policy that said we're going to use dedicated facilities and not retail facilities for interconnection. That's something that Verizon had done successfully with other competitors in Maryland and other states prior to 1999. It was how eSpyer, for example, was interconnected. Yes, there was obviously a disagreement and we lost on that disagreement though in a variety of ways along the way. Although most recently core sites are a more recent decision from the Maryland Commission which found that our policy was not actually in breach of their Damascus agreement. So I don't think you can look at the fact that Verizon had this policy and suggested it was doing a fairies. Well, there's a difference. Can you have a habit of doing this? Well, we had a policy because it was the way Verizon's engineers thought telephone networks should be built for the benefit of customers. And that's, I think it may be a turned out, it violated the contract but I don't think having that policy is an anyway interesting. That's right, it does violate the law when your policy runs counter to your duty to interconnect with local telephone carriers. I agree with you. Now in that way. That's why you can't hide under your policy to say we're going to effectively write that out. And I think you're going to leave this continued answering judge Wilkins. I was, I was, my point, your honor is it was a good faith disagreement. There is no evidence that Verizon adopted that policy with an intent to hinder or delay competitors to the extent it was a breach. Companies disagree about what their contracts mean. The problem with the problem was not your difference in how you connected retail and commercial. The gravity is whether or not you purposely abort it. And did not or conceal the fact that you were telling them on one hand, oh, we can't connect you because there's a retail customer connected, presumably knowing all along that they were the customers and could have done so. That's the question. Let me get to that. Why is that not just lying? So, well, first of all, you're honest, they withdrew their claim of affirmative misrepresentation. It's in footnote two of the judge's opinion and that's at page 628 of the joint. Just a stone for the surf that there's no waiver. Just answer that question. Why is that not evidence? There's no waiver. Let me finish my question. Let me finish my question. Question is, why is that not evidence that you deliberately misled core by not telling them that they were the supposed retail customer that prevented you from complying with the federal law of interconnection? That's the question. Your honor, there is literally no evidence that we told them anything other than that there was a retail customer. We did not. There is no evidence that we told them that it was a customer other than core. They made that assertion and they knew it was the customer. Of course, core knew it was the customer. Mr. Mingo had gone to the site. I mean, if they ever looked at it. Well, why wouldn't they be aware of that? I have no idea. But if you look at the letter that Mr. Van De Verk sent, and this is a page 469 of the joint appendix, it's in the 1234th full paragraph. Core says not, Verizon, please tell us who the retail customers. Of course, we are working with our existing retail telecommunications service provider, i.e. eSpyer, to identify that existing customer. So, Core didn't say, please tell us who it is. Core said, we're going to figure it out ourselves. There is no evidence that Verizon did anything other than say this is cataloged in our system as a retail facility. There is something else on this. Judge Mott's in the district court level made some comments about, well, he found that there was absolutely no bad faith on your part of no intentional misconduct. But he got a little bit, he dug in a little bit, he obviously didn't like the fact that the prior case had adjudicated a breach. And he said, well, a pellet court don't find facts, et cetera. Is the district still digging in against the mandate here? No, Your Honor. The mandate, this court found that we breached the contract, and it remanded for the judge to further consider whether Core had a standalone claim for the breach of the implied duty of good faith and fair dealing in the contract. He adjudicated that, allowed Core to attempt to present the damages case. And Judge Mott's found that, but he wouldn't just dig an in. No, Your Honor. And again, Core didn't put in evidence

. Let me finish my question. Let me finish my question. Question is, why is that not evidence that you deliberately misled core by not telling them that they were the supposed retail customer that prevented you from complying with the federal law of interconnection? That's the question. Your honor, there is literally no evidence that we told them anything other than that there was a retail customer. We did not. There is no evidence that we told them that it was a customer other than core. They made that assertion and they knew it was the customer. Of course, core knew it was the customer. Mr. Mingo had gone to the site. I mean, if they ever looked at it. Well, why wouldn't they be aware of that? I have no idea. But if you look at the letter that Mr. Van De Verk sent, and this is a page 469 of the joint appendix, it's in the 1234th full paragraph. Core says not, Verizon, please tell us who the retail customers. Of course, we are working with our existing retail telecommunications service provider, i.e. eSpyer, to identify that existing customer. So, Core didn't say, please tell us who it is. Core said, we're going to figure it out ourselves. There is no evidence that Verizon did anything other than say this is cataloged in our system as a retail facility. There is something else on this. Judge Mott's in the district court level made some comments about, well, he found that there was absolutely no bad faith on your part of no intentional misconduct. But he got a little bit, he dug in a little bit, he obviously didn't like the fact that the prior case had adjudicated a breach. And he said, well, a pellet court don't find facts, et cetera. Is the district still digging in against the mandate here? No, Your Honor. The mandate, this court found that we breached the contract, and it remanded for the judge to further consider whether Core had a standalone claim for the breach of the implied duty of good faith and fair dealing in the contract. He adjudicated that, allowed Core to attempt to present the damages case. And Judge Mott's found that, but he wouldn't just dig an in. No, Your Honor. And again, Core didn't put in evidence. Core asserted that somehow this Court's background section of its opinion entitled to summary judgment on its tort claims. When tort claims were never litigated in front of the Maryland Commission, the Maryland Commission had no reason to consider issues of intent or issues of reliance. The Public Service Commission, the Public Service Commission said we breached the implied duty of good faith and fair dealing. What do you do with that plan? You do two things, but the first one we want on that issue. We wanted it initially in front of Judge Mott's and after remand, we wanted it again, because there is no such thing in Maryland as a standalone breach of the duty of good faith and fair dealing. But most importantly, under Maryland law, all that breaches is it's an implied contract term. There's no intent element to the, I mean, I know it's like fraudulent jointer, Your Honor's. Right, fraudulent jointer is something you can do without any malice or you just make a mistake. You pick a defendant who it turns out you really don't have a claim against. Not because you're really trying to stay out of federal court, because you made a mistake. The breach of the implied duty of good faith and fair dealing does not mean you acted in bad faith. All it means is you did a breach of the contract that like all breaches denies the other party, one of the benefits of the bargain. So you can't look at that reversed again and conceitably reversed. This records opinion makes clear that court agreed that it had no standalone claim. And the Maryland Commission had no legal basis for that claim. You can't conclude from that a factual finding that's binding, especially in light of all the evidence that come to light that Verizon was acting. In a malicious way that might trigger an exception under section 26.2. Your Honor, in my time that. Is anything furlough just just a couple of things I'd like to my delay was three months at most. It was not four to six months to the sent that's relevant. I think it is as the FCC found in the Cavalier case. Allow on the relatively short period of the delay is a dissed additional. In this show the fact that there was no bad faith. Actually, I just wanted to clear up the record so that the court was not. The delay but there's the length of the delay speak to the question of intentional mishandling. Your Honor, I think the relevant the only relevant thing I draw from that and this is in the record in the prior case is that in building the dedicated facilities for court Verizon did it faster than it did it for everyone else that it was building those four at the time. So I do think that that suggests that we were not acting in a dilatory or pernicious manner. Somebody judge me. When is it? When some rejected granted by the district court. Some of the other was granted on the damages issues

. Core asserted that somehow this Court's background section of its opinion entitled to summary judgment on its tort claims. When tort claims were never litigated in front of the Maryland Commission, the Maryland Commission had no reason to consider issues of intent or issues of reliance. The Public Service Commission, the Public Service Commission said we breached the implied duty of good faith and fair dealing. What do you do with that plan? You do two things, but the first one we want on that issue. We wanted it initially in front of Judge Mott's and after remand, we wanted it again, because there is no such thing in Maryland as a standalone breach of the duty of good faith and fair dealing. But most importantly, under Maryland law, all that breaches is it's an implied contract term. There's no intent element to the, I mean, I know it's like fraudulent jointer, Your Honor's. Right, fraudulent jointer is something you can do without any malice or you just make a mistake. You pick a defendant who it turns out you really don't have a claim against. Not because you're really trying to stay out of federal court, because you made a mistake. The breach of the implied duty of good faith and fair dealing does not mean you acted in bad faith. All it means is you did a breach of the contract that like all breaches denies the other party, one of the benefits of the bargain. So you can't look at that reversed again and conceitably reversed. This records opinion makes clear that court agreed that it had no standalone claim. And the Maryland Commission had no legal basis for that claim. You can't conclude from that a factual finding that's binding, especially in light of all the evidence that come to light that Verizon was acting. In a malicious way that might trigger an exception under section 26.2. Your Honor, in my time that. Is anything furlough just just a couple of things I'd like to my delay was three months at most. It was not four to six months to the sent that's relevant. I think it is as the FCC found in the Cavalier case. Allow on the relatively short period of the delay is a dissed additional. In this show the fact that there was no bad faith. Actually, I just wanted to clear up the record so that the court was not. The delay but there's the length of the delay speak to the question of intentional mishandling. Your Honor, I think the relevant the only relevant thing I draw from that and this is in the record in the prior case is that in building the dedicated facilities for court Verizon did it faster than it did it for everyone else that it was building those four at the time. So I do think that that suggests that we were not acting in a dilatory or pernicious manner. Somebody judge me. When is it? When some rejected granted by the district court. Some of the other was granted on the damages issues. Yes, and on the question of the gift for. All factual inferences are to be in the favor of whom. Your Honor, they would go in favor of. I was just exact. So but you you're talking about a whole lot of facts that we just need to accept like three months automatically. Going the fact to give them the you give them to six months. Well, you're all I'm saying is that this court question. What was the link that I was very interested in you for the purpose of summary judgment purposes. You'd be willing to give them the six months. When you are your your your prior opinion states the relevant dates. I was just clarifying your law. But transcripts. We're not you know not every. Yeah, not every question is a hostile question. Some of them are. But they're entitled to the facts on summary judgment. Right. I think the facts on summary judgment title. If it's between if there's a question of whether there's three months or six months, they get it. Okay, that's true. But my point was simply that there's no question. Why not make any difference, but they get it. I my point was only that there was no question about what about the length of they requested three months. They exact. There's no question. No evidence ball to say it's for no six. We requested to be done. I was a member of the law of the six months delayed is not evidence that you were intentional intentional. Just so I can be clear my answers. There was a question asked of Mr. Glitner has to how long the delay was the record is absolutely clear and there's no dispute

. Yes, and on the question of the gift for. All factual inferences are to be in the favor of whom. Your Honor, they would go in favor of. I was just exact. So but you you're talking about a whole lot of facts that we just need to accept like three months automatically. Going the fact to give them the you give them to six months. Well, you're all I'm saying is that this court question. What was the link that I was very interested in you for the purpose of summary judgment purposes. You'd be willing to give them the six months. When you are your your your prior opinion states the relevant dates. I was just clarifying your law. But transcripts. We're not you know not every. Yeah, not every question is a hostile question. Some of them are. But they're entitled to the facts on summary judgment. Right. I think the facts on summary judgment title. If it's between if there's a question of whether there's three months or six months, they get it. Okay, that's true. But my point was simply that there's no question. Why not make any difference, but they get it. I my point was only that there was no question about what about the length of they requested three months. They exact. There's no question. No evidence ball to say it's for no six. We requested to be done. I was a member of the law of the six months delayed is not evidence that you were intentional intentional. Just so I can be clear my answers. There was a question asked of Mr. Glitner has to how long the delay was the record is absolutely clear and there's no dispute. Or wanted the interconnection to be in place by mid September. It was in place by mid December. So that's not six months. That's three months. The second question to judge Wilkinson asked as well as that relevant to intent and it's obviously not something that the district or relied on one way or the other. But I was simply adding because I got a question. I mean, if it would make it it would make a difference to me if it were three months as opposed to 18 months or or not just in terms of damages, but it also in terms of for the 26.2 kicks in. And I was simply noting that the prior record in this case, which is of course the record. I suppose technically it's still part of the record here. The undisputed facts were that Verizon completed this faster for core than for other people. All right. Thank you. That's all I was trying to appreciate. We need some rebuttal here from Mr. Glitner. Thank you, y'all. On the contract issue, the real reason that we are here on the contract or Xcropatory clause issue is a failure of imagination. Neither Congress went past the law. The FCC when it promulgated the rules. The Maryland Public Service Commission when it has been interpreting these rules or even the lawyers who drafted this contract. The core has accepted imagined that an I-LEC might refuse to interconnect, which is what Verizon has been found to not have breached the contract by. Because they have failed to imagine that they would refuse to interconnect, there are no provisions that talk to it. I'm not sure I find that very persuasive. We're supposed to resolve this on the basis of Congress's failure of imagination. I'm saying that the contract itself because it goes from the Congress down to the contract said, there is no provision for what happens if they fail to connect. That's because they left some things to be negotiated between the parties. Congress wasn't trying to write these contracts. All the eventualities that might arise, including a refusal to connect, that's the whole point of the contract. It's not that the whole scheme isn't set up for Congress to draft the contract. Congress left it to the parties, to the established company, and then to the new arrival

. Or wanted the interconnection to be in place by mid September. It was in place by mid December. So that's not six months. That's three months. The second question to judge Wilkinson asked as well as that relevant to intent and it's obviously not something that the district or relied on one way or the other. But I was simply adding because I got a question. I mean, if it would make it it would make a difference to me if it were three months as opposed to 18 months or or not just in terms of damages, but it also in terms of for the 26.2 kicks in. And I was simply noting that the prior record in this case, which is of course the record. I suppose technically it's still part of the record here. The undisputed facts were that Verizon completed this faster for core than for other people. All right. Thank you. That's all I was trying to appreciate. We need some rebuttal here from Mr. Glitner. Thank you, y'all. On the contract issue, the real reason that we are here on the contract or Xcropatory clause issue is a failure of imagination. Neither Congress went past the law. The FCC when it promulgated the rules. The Maryland Public Service Commission when it has been interpreting these rules or even the lawyers who drafted this contract. The core has accepted imagined that an I-LEC might refuse to interconnect, which is what Verizon has been found to not have breached the contract by. Because they have failed to imagine that they would refuse to interconnect, there are no provisions that talk to it. I'm not sure I find that very persuasive. We're supposed to resolve this on the basis of Congress's failure of imagination. I'm saying that the contract itself because it goes from the Congress down to the contract said, there is no provision for what happens if they fail to connect. That's because they left some things to be negotiated between the parties. Congress wasn't trying to write these contracts. All the eventualities that might arise, including a refusal to connect, that's the whole point of the contract. It's not that the whole scheme isn't set up for Congress to draft the contract. Congress left it to the parties, to the established company, and then to the new arrival. He said, okay, you negotiate the terms of your relationship yourself. It does, but as GlobalNaps tells us, the interconnection portion was a duty and not a service. We contract our service and we contract how you were to do your duty of interconnecting with us. But we don't imagine that we're not going to interconnect. We imagine what will happen after we interconnect the services port. We have things like 26.2, which tells us what our remedies are. You've got contractually, it's perfectly fair to say that you should take a look at the eventuality that there may be a delay in the connection. If that were in the contract, anywhere I would agree with your honor. But the interconnection is talked about 27.1, which is what this court found, Verizon breached, and 27.3 says we're allowed to apply to a court and does not limit us to limit us away from consequential damages. It's 26.2 that does that. 26.2 talks about services. Again, the bridge is connection, allowing the cars to cross back and forth to transport information and to terminate information. That is the service. 26.2 tells us what happens when the service is port. It doesn't tell us what happens when they just refuse to interconnect. It's an amazing experience. It's got a hard case where you come to a false circuit and you win if there's a breach. You go back to the district court and I'm going to grant summary judgment on your damages. That's the case. We really have to look very careful there because I'll make sure that our mandates are being carried out. You're right. You'd be arguing their factual questions. It's like goodness, you win as a breach. Nancy, on this case, Verizon is almost most of the argument is still arguing whether or not they actually breach. Almost

. He said, okay, you negotiate the terms of your relationship yourself. It does, but as GlobalNaps tells us, the interconnection portion was a duty and not a service. We contract our service and we contract how you were to do your duty of interconnecting with us. But we don't imagine that we're not going to interconnect. We imagine what will happen after we interconnect the services port. We have things like 26.2, which tells us what our remedies are. You've got contractually, it's perfectly fair to say that you should take a look at the eventuality that there may be a delay in the connection. If that were in the contract, anywhere I would agree with your honor. But the interconnection is talked about 27.1, which is what this court found, Verizon breached, and 27.3 says we're allowed to apply to a court and does not limit us to limit us away from consequential damages. It's 26.2 that does that. 26.2 talks about services. Again, the bridge is connection, allowing the cars to cross back and forth to transport information and to terminate information. That is the service. 26.2 tells us what happens when the service is port. It doesn't tell us what happens when they just refuse to interconnect. It's an amazing experience. It's got a hard case where you come to a false circuit and you win if there's a breach. You go back to the district court and I'm going to grant summary judgment on your damages. That's the case. We really have to look very careful there because I'll make sure that our mandates are being carried out. You're right. You'd be arguing their factual questions. It's like goodness, you win as a breach. Nancy, on this case, Verizon is almost most of the argument is still arguing whether or not they actually breach. Almost. Most of it, whether he was arguing about was whether or not there was a bridge. They're still arguing with that. It seemed like the district court was still involving that. Why aren't you arguing that there are factual questions about your damages? Okay. Well, there's obviously factual questions about our damages. We have a very lengthy expert damages report filed in a sealed version and they're going to be fights about what our damages are. And we should be able to get in front of a jury and figure out what our damages are. Is that what you want? You want to sit back for a jury trial, right? Absolutely. You're on. Even on the tort claims, we're not asking, and though yes, we prefer to. We're not asking for summary judgment that we win. We're asking for summary judgment that we get a jury trial. How many experts you got? One expert, which is one more than they had. One more than they had. It's only one expert. Yes, you're right. But the report's all sealed. We can't see that. But you can. It's available to you. That is sealed in the record, but it's available to you. And so you've got that expert. They're disagreeing with our damages, which I understand. And that's what a jury should be about. To the point I can't imagine why were you arguing about imagination. It's clear. That's what federalism is. Yes, Your Honor. That's why if Maryland law takes care of the damages and those. One of not does a tort and whether or not that. And the federal law is an outside duty, which is amounts to

. Most of it, whether he was arguing about was whether or not there was a bridge. They're still arguing with that. It seemed like the district court was still involving that. Why aren't you arguing that there are factual questions about your damages? Okay. Well, there's obviously factual questions about our damages. We have a very lengthy expert damages report filed in a sealed version and they're going to be fights about what our damages are. And we should be able to get in front of a jury and figure out what our damages are. Is that what you want? You want to sit back for a jury trial, right? Absolutely. You're on. Even on the tort claims, we're not asking, and though yes, we prefer to. We're not asking for summary judgment that we win. We're asking for summary judgment that we get a jury trial. How many experts you got? One expert, which is one more than they had. One more than they had. It's only one expert. Yes, you're right. But the report's all sealed. We can't see that. But you can. It's available to you. That is sealed in the record, but it's available to you. And so you've got that expert. They're disagreeing with our damages, which I understand. And that's what a jury should be about. To the point I can't imagine why were you arguing about imagination. It's clear. That's what federalism is. Yes, Your Honor. That's why if Maryland law takes care of the damages and those. One of not does a tort and whether or not that. And the federal law is an outside duty, which is amounts to. And perhaps the fiduciary duty. And that's what in the tort sometime arise on. And that's where I was trying to go, Your Honor. Judge Montz reversed himself. He initially said that the extol territory call cannot stand. But he said that he cannot stand because it frustrates the federal statute. The rise of came along and said that we didn't argue that. I was reconsidering. So again, that when you came back on the motion to reconsider. Yes, Your Honor. Okay. And Verizon said that the court did not argue that. And they're right. We didn't argue it. And we didn't argue it then. And we didn't argue it in our brief years because I cannot find a case. I can put before this court that says frustration of statute is a reason to. For us to win. But I would argue that Judge Montz was right. Not allowing damages absolutely frustrates the statute. And I would argue that he should not have reversed himself that our motion is an application for an order. And even if we did not refit, he is allowed to find for us for any legal reason. He finds fit. And I would argue that this court should find that not allowing damages frustrates the statute. And does not give it any force or effect. Because Verizon says that there was a must they didn't know because of their company's big. And they had their own standards of connection. And they may be right. Nobody's saying nobody. No one is saying about it. Live

. And perhaps the fiduciary duty. And that's what in the tort sometime arise on. And that's where I was trying to go, Your Honor. Judge Montz reversed himself. He initially said that the extol territory call cannot stand. But he said that he cannot stand because it frustrates the federal statute. The rise of came along and said that we didn't argue that. I was reconsidering. So again, that when you came back on the motion to reconsider. Yes, Your Honor. Okay. And Verizon said that the court did not argue that. And they're right. We didn't argue it. And we didn't argue it then. And we didn't argue it in our brief years because I cannot find a case. I can put before this court that says frustration of statute is a reason to. For us to win. But I would argue that Judge Montz was right. Not allowing damages absolutely frustrates the statute. And I would argue that he should not have reversed himself that our motion is an application for an order. And even if we did not refit, he is allowed to find for us for any legal reason. He finds fit. And I would argue that this court should find that not allowing damages frustrates the statute. And does not give it any force or effect. Because Verizon says that there was a must they didn't know because of their company's big. And they had their own standards of connection. And they may be right. Nobody's saying nobody. No one is saying about it. Live. The question is these are factual questions as a whether or not it amounts to it. And you entitled to a jury. That's what we're saying. That's what we're saying. Right. We're saying that their argument that our one hand didn't know what the other hand was doing was good until we sent the letter. We're saying that there are plenty of factual issues about what our damage is should be. And not to bring it up again, but we're saying there are factual issues as to whether or not we should be allowed to get our torque claims in Maryland law. Even if for circuit law doesn't Maryland law allows it to be a tribal issue of fact that's their intentional misconduct. Yes, Your Honor, but we're arguing that the facts as are in the record the 14 year record of this case are plenty to get us there. This is a recalcitrant. They've heard imputed with knowledge as to who the retail customer is correct. So again, Your Honor, they're imputed with knowledge as to who the retail customer was that was blocking you. Yes, Your Honor. You have to be imputed with that. I would argue they're imputed with it to begin with, but to the extent that they're going to argue that they did not know that the retail and the wholesale divisions didn't know what each other were doing when we sent the letter on August 20 of 1999. They had a duty at that point for the retail division and the wholesale division talk to each other. So I agree with your honor that they reached a duty before we sent the letter, but they definitely reached it after we sent the letter. Thank you, Your Honor. All right, we will come down in the Greek Council and then we will see it after a very brief recess into our final case. Or we'll take a brief recess.

I'm going to pick up core communications versus Verizon and Mr. Gleason, start us off here. Thank you, Honourary. Please the court. I represent core communications in this case. My name is Ralph Gleason and sitting at Council table with me is Chris Van DeVurg, who is Internal Counselor for Core. We are here to ask this court to find that the district court was correct when it found that an ex-copatory clause in the contract between core and Verizon did not apply and aired and reversed in itself and also aired and find the core may not exceed and its tort claims against Verizon. I think that this court is well aware of the procedural history of this case, but this court has found in 2010 that core Verizon breached the Interconnection Agreement and the question it is whether or not core may receive damages from its breach. Verizon argues that there is an ex-copatory clause in Section 26 of the Interconnection Agreement, which prevents core from receiving compensatory damages, which are the bulk of course damages in this case. Now, I want to make the court aware that this case reaches beyond the disagreement between just core and Verizon. Verizon is arguing that this ex-copatory clause keeps it from having to pay any compensatory damages for a failure to interconnect, which is the basic, what it has to do under this contract is interconnect. It then it has to provide services and accept services from the competitive local exchange character, excuse me, carrier. If it does not have to pay damages, then Verizon or any incumbent lack may choose just not to interconnect without fear of having to pay anything for its failure to interconnect. And that is obviously an illogical conclusion to this case, but it could happen. It doesn't have to be Verizon. It can be any I-lect. And that would frustrate the statute and would stop the competition that the ex-design to encourage. However, the reason that we're arguing that that ex-copatory doesn't, a clause doesn't apply or three reasons. One, a reading of the statute itself shows that it does not apply in a case when interconnection is, when the duty to interconnect is breached. Second, the Maryland law does not allow an ex-copatory clause in this case, though it is ex-copatory clauses are allowed under Maryland law. And lastly, Verizon failed to plead this ex-copatory agreement, which is an affirmative avoidance and required to be pled by Rule 8. You know, this court found that Verizon breached the contract by failing to interconnect under 27.1 of the agreement. Verizon is arguing that the ex-copatory clause in Section 26.2 of the agreement applies. The reading 27.1, it has its own remedy for breach, and that is in Section 27.3. And 27.3 says that the penalties that might be appropriate shall be resolved through a competent process to a court of competent jurisdiction. Now I have left out some parts of that, but it does say that. Now Verizon has argued, well, it also says right before that you can go to a court of competent jurisdiction to redress your issue, you have to have a statistically significant error rate in order to and reports of errors in order to be able to go to a court under 27.3. Well, again, we're not talking about the traffic back and forth over the network. We're talking about forming the network, the interconnection. And because we're talking about the forming of interconnection and this court found that they breached that interconnection, Verizon in this case breached the contract 100% of the time. And that is statistically significant error rate. This is, again, a binary system. The interconnection happens or it doesn't, and there can be no statistically significant, or statistical analysis in that. So the 27.3 section is what applies here, not the 26.2 in Verizon's argument fails and we should be allowed to go forward. Further, if one reads 26.2, I mean, section 26, the first part, 26.1, accepts out 27, which is exactly where this court found the breach. Second, the interconnection, 26.2 talks about failures and telecommunication services. Interconnection is not a telecommunication service. That's Global NAPS versus Belatvang, New Jersey, which is predecessor to Verizon. It's also competitive telecom versus FCC. They have ruled that interconnection is not a telecommunication service. It's the traffic, the flow of traffic and the torrentation of traffic that is a service. Verizon has argued that, okay, we agreed that the cases say that it's not a telecommunication service and that our courts have said that that has a specific definition, but it is nonetheless a service. Well, we disagree with that in your honor. Think of it as core living on one side of a river and Verizon living on the other and interconnection as a bridge. One way to look at it is that they have to work together to build a bridge and the government and the interconnection agreement, government through statute and interconnection agreement itself say that they have to build that bridge. So it is not a service that one provides to the other. Yes, sir. The initial reservations I had about your case was these darn tort claims. And I don't know how you think you can bring those because this relationship is framed by a contract and it's a very highly reticulated contract and it's a comprehensive contract in which the parties appear to kind of play all sorts of the ventualities. And the breach of a contract just isn't a tort. And yet over and over again we have these tort claims and if part of the reason parties contract is to give some definition and framework to their obligation so they'll know what they can expect if they go into court. So why couldn't you just proceed with your contract claim and deal with it as a breach of contract and talk about the contractual remedies without bringing in all these torts? You're asking why any plaintiff might give up causes of action which it believes it fairly holds under the law and we do and which might also prevent a competitor from doing that type of act in the future. If we can win on a tort claim and convince a jury that there was malice and thereby get punitive damages when you may stop Verizon and other Ilex from dealing with the small sea legged. You get consequential damages if there's malice. You're going to mean the consequential damages are pretty significant in their own right. But the consequential damages are what we heard argue about in the contract portion of this claim, your correct your honor. The only thing we get extra for the torts, assuming that the contract case goes for the only thing we get extra is if we get punitive damages on the torts. But Maryland law controls. That's very troublesome when parties enter into contracts. It would up in commercial life if they thought that there was a breach of that contract that they were subject to open-ended punitive damage. It destroys a very nature of contract which is to provide some outer limits and some sort of definitions to the rights and obligations of each of the contracting parties. And then you just, you know, torts a wide open area. It has its places, particularly injuries between strangers and particularly business injuries in the absence of a contract. But where you have a contract that's as detailed as this one is. And, you know, these were two business parties. They weren't naive. They were sophisticated business parties. They negotiated the contract. And then here we see these torts claim. I understand your honor's concern. And I- There are also sophisticated parties with high-prior lawyer. Yes, Your Honor. However, this- they did not- were not required to enter into this particular contract. They chose to enter into it because the way, as you remember, the way this happens is if you see a contract you like, you can say I want that. So rise in the action. Well, good if you're negotiating a contract and being represented by Council if we're just going to have a breach become some kind of torquing. Well, I mean, why go through the- why go through the exercise? Well, Your Honor, we're looking at Maryland law. And Maryland law says that you can have a torquing claim if the breach is also a torqued. They can be- but they have to be if so intertwined that one cannot be viewed in isolation from the other. So the question isn't whether or not the breach arises- I'm not saying, I mean, I don't understand the principle of limitation. Well, I understand, Your Honor. What we're not saying that the breach is a torqued. We're saying that them lying to us is a torqued. That them concealing information from us is a torqued. So the breach we can recover under- Always carbunkle something else. Well, we were misrepresented. Something was misrepresented to us in the course of the breach. And therefore the breach becomes a torqued. Well, I understand that. But in its finding the torqued. I mean, it's hard to overestimate the havoc that this kind of thing would play with commercial relationships. And I don't understand it. And there are a lot of people, a lot of litigants who come before the court. And I find that in argue the contract, that's a better atmosphere. And there are arguments seem to me a whole lot more persuasive when they argue in terms of what they negotiated, in terms of the written contract. And it present very effective cases. But these, these, these, all the things. And that's what I obviously led with this morning, the honor was the contract. And I would tell you that if we were here looking at four-circuit law, I would be reluctant to bring these torqued claims. But we are here under Maryland law. And I believe that they're allowed in this court has to look at this case, even given its reservations under Maryland law, which can allow them given the facts, if the facts are correct and the facts in this case. And as used in Verizon too. We've got a contractual term. It makes them liable for consequential damages in the event that there's malice, right? Yes, Your Honor. And then, now, you need to tell me factually why you think there's, why you think there's malice on the part of Verizon. Your Honor, Verizon refused to interconnect core quickly. No, they were specifically asked to. Verizon stated that they had a concern about equal inequality connection that they never presented to core until after the lawsuit was began, meaning not at the point. And part is that they're apparently an ordinary breach of contract and malice. They're not wanting the same thing, are they? No, you're not. So show something more than an ordinary breach. And why did Verizon's conduct and I want to go about apologize, Your Honor? And I want to say that for the breach, and malice is not required, but intent is. So to the extent we're parsing, I don't mean to do that, but it can be an important. It, Verizon's conduct, including Verizon telling core that it could not connect core at the locations requested because there was another customer of record core specifically wrote a letter to Verizon asking who the customer are saying that we were going to find out who the customer record is so we can talk to them about allowing us in there. And then finding out later the core was the customer record shows. What was the response to the request to find out the identity of the other customer? Say again, sorry. What was the response from the vendor? There was no response, Your Honor, much like our request interconnect, much like our request to allow us into a loop connector, which they said eventually said we didn't allow you to connect to because less from quality, but they just didn't respond and they just didn't connect. It is clear that they tried to delay. And how long did it take? You had a council, questions to you as to why you might surprise that you're so timid. You, when you bring it actually on the Merlin Law for a tort, question you is why you hear Father Nick Fortwood that and you need to say why you are. How long did it take them? After they told you that there was a retail customer connected. There was. And you said, well, can you give me the name? So perhaps we can negotiate how long did it take for them? They never gave. And how long did it take? And it took. How long was that over? It was, well, we got connected in four months and it was two years later when the case was about to go to travel for the PSC when the, we found in discovery and I say we was not involved in the case time. We found in discovery from one line on one page out of hundreds of documents the core was in fact a retail customer. From which you, you, you can tend, you can infer mail is correct. That is our contention, Your Honor. Right. Well, that is when you need to argue. You seem to be determined about it. That is why you hear on the tort. Well, on the tort claims your right, Your Honor, and we believe that Verizon's conduct was reprehensible in this case. Well, your man, Mingo, kind of undercut you, didn't he? I don't believe so, Your Honor. I think that some of his testimonies been quoted by Verizon, but not all of it. He has said in. Go out of context. Well, not so much out of context, but not quoted without all of the context. He has said. He's, he's your, how much? Yes, sir. He is the president of the company and the main person, but he has said in the past that core of Verizon definitely intended to delay the case. Is he excopated Verizon? Great extent. I don't believe that's correct, Your Honor. I don't want to argue with the court if that is your finding, but he has also said that Verizon specifically intended to delay the interconnection. And that when asked about that, he said if it looks like a duck and quacks, like a duck, it's a duck, meaning if somebody is going this far out of their way not to connect us, when we ask to connect us and lie into us about us, about it, they are intending to delay the connection. I see my time is up, I'll finish in the book. You can use the answer, I mean. Yes, sir. William Trudjick. But I don't believe he undercuts at all. He basically just said that he agreed that he did not know what Verizon knew. But it's clear, and Verizon argues that one section, one division of Verizon doesn't know what the other division is doing, the retail and the wholesale people don't know each other, and that's why we didn't tell you. That's fine, until. I have big corporations and things like the government. And that's fine, Your Honor, until August. Not everybody knows what everything is going on. And that's fine until August 20th of 1999, that is when Mr. Van DeVerk sent a letter to a coer saying, you've told us that there's a customer record, you've told us that somebody other than us. The two approaches was about four to six months. Correct, Your Honor. We're not talking about a period of years or whatever. Not in this case, Your Honor, but if we're not allowed to go forward on contract claims. This is the one that we have to decide. What is, I mean, five, four to six months indicative of a sort of a gree just misconduct? It's, of course, already found the breach that they have the misconduct and that they breach this case. We're not here about that. The question, again, when you get to the Maryland side of the law is whether or not there was intentional, but it's not just intentional. It's public service. It's what does the contract to say and did they bring it up in time because they did not raise this issue for 11 years. Thank you, Your Honor. Mr. Angstray? Yes, Your Honor. Thank you. Thank you, Your Honor. I'd like to start where Mr. Glieden did with section 27.3. Those claims have been completely waived. After the judge ruled on reconsideration, Judge Mott, he said to the parties, I think it would be efficient for you to agree on the limited amount that chorus and tile under my ruling so that you can appeal those rulings. But if you don't agree, and this is on page three of the special appendix, if you don't agree, please advise me. I will hold a conference to set a schedule for the remaining proceedings in this case. If Court had any arguments about section 27.3 and damages due to it under that section, that was the time to raise them. Court didn't raise them. It agreed to a $1 judgment, glittered, and could appeal the rulings the judge actually reached. There is nothing in either the summary judgment. That's a sketch of an order that mirrored what the Court ruled. It's not conceding to what. Obviously, the whole case was about damages. Judge, listen, you need to sketch an order that will accurately mirror what I've ruled. You have to agree on that. You'll say that because they put that in there which reflected the judge ruling, their way damages. We had asked the judge on summary judgment. We said they have no evidence other than that. What was he requesting you all to write an order or was he a question that he'd go settle? He was, I think, what he was doing was requesting that he, I think he figured. You're saying that thing was a settlement agreement. It wasn't a settlement agreement. They were litigating. You're on. But he made a ruling and said, you all come up with an order. Right. And that's what lawyers do. A lot of judges do that from the bench. You're on a, if I'd rule and sell the lawyers to write up an order conformity there with. You're on a, if he had thought that that would mean they waived the right to pursue an appeal. I'll, I'll try one more time. I mean, it will not be worth anything, but they have the right to try it. Well, they have the right to appeal his ruling that the exculpatory or section 26.2 bars them from recovering consequential damages. They absolutely have the right to appeal that. But their claim goes beyond. Their claim is that somehow it's sides the consequential damages. And there is no exception in section 26.2 for section 27. Besides the consequential damages, there's some other kind of damages they're entitled to get. They had no evidence of that before the district court. That's what we said. We said, therefore, they get only nominal damages. I think if Judge Monson wanted to award them nominal damages, he would have ordered them one dollar. You're saying they settled. They settled that bit of the case. Yes, Your Honor. There was a settlement after the Judge ruled. Is that what your position is? I think the Judge offered them the opportunity to have further proceedings on damages. They did not take that opportunity. They chose instead to sign on to a judgment that we drafted that gave them only a dollar. Well, how come nobody ever characterized it as a settlement and wrote it down as a settlement agreement? I mean, if that's if the audience were to negotiate no settlement agreement, that looks to me like I would have said so. Your Honor, we were certainly negotiating. If they were to want to condense an order in conformity with the judges ruling, it's another matter. I'm not going to try for that. I think if you look at page special appendix 3, you'll see that the Judge did not dictate the particular outcome and left it to the parties to choose whether to write a judgment or whether they try and have further proceedings before the Judge. And they chose the Judgement not further proceedings. But in any event, they never argued section 27.3 below. They never argued statistical significance below. And they misconstrued the entire contract. If you look at section 27.2.1, it says that Belantic Maryland or Verizon Maryland's performance is going to be reported and adjudicated or judged based on the front in the entire state of Maryland with all of the competitors that it's interconnecting with. And I'm not sure why, but this isn't in the joint appendix. But the performance reports specifically list competitor trunking. That is the trunk, the facilities that carry traffic past each other. So if there was some argument about statistical significant violations, they could and should have made it below before they describe it. But most importantly, section 26.2 is not Carvouth section 27. These parties, these parties, core. As Mr. Gleaton said, picked off the shelf, they said, this is the agreement I want. It has a bar on consequential damages. They picked this contract, not Verizon. They didn't have to pick this contract. They could have said to the Maryland Commission, I want every bit of this contract but section 26. And we would have litigated. If you're saying it should be construed against them then. It doesn't be constructed against them. I think the rule or the primary draft or something. They lose on the plain language. I don't think there's any construction necessary. Section 26.2, unambiguously barges consequential damages in breach of contract claims. And in negligence claims. It carves out intentional ports and gross negligence. But in a breach of contract claim and a negligence claim, consequential damages are barred. That's entirely consistent with Maryland law, which says you can't buy contract in some instances completely eliminate negligence liability. And you normally can't limit, you can't eliminate liability for gross negligence and intentional ports. So as you read the Ex-Culphatory clause, you could have delayed for five years telling them, oh, you know, there's a retail customer connected and you can't connect. You could have played cat miles for them for five years as we found you in breach before. You're on. And there would be no consequences. The consequences would be severe and drastic for my client if they did that. The Maryland Commission and the Federal Communications Commission have substantial regulatory sanctions up to and including the ability to deprive my client of the right to sell long distance service to the customers in the entire state of Maryland. The Council, but that doesn't help the person who you wrong. God, that is a sufficiently severe sanction that it would make any carrier. I think that's why. The addition to the making hold of the person you wrong. What I can tell you is that when the Federal Communications Commission was presented with the same issue and it looked at a clause that precluded consequential damages for breaches of the interconnection agreement and a competitor said there should be an exception to that for violations of statutory duties like the statutory duty to interconnect. The FCC said that competitor's proposal was commercially unreasonable and rejected it. So we know that the Federal Communications Commission does not think there is anything wrong with a provision like section 26.2 that is voluntary agreement and protects course. If the court breaches the contract, Verizon can't go after the court for consequential damages. This is a mutually agreed upon bilateral provision that is recognized and permitted under Maryland law. It's permitted under federal law. And then there's an exception for intentional misconduct. We think only. Tell me, tell me the question I had, the public service commission. I found the facts. And they found that it would have been very technically feasible to connect to the existing OC-12. And that you never initially claimed in declining the immediate connection that there was going to be a diminution in quality if an existing connection rather than a new connection was utilized. And you didn't disclose to the court the fact that you had a customer record. And why don't do all of those PSC findings? Tell me why in your view. You don't think they are tantamount to intentional misconduct. I will tell you, John, but first I'd like to point out that I don't read section 26.2 to not apply or to exclude from its scope, supposed intentional breaches of contract under the Maryland law that this is following. And it's the Wolf case, which sites the statement of contracts in a case applying it. What's prohibited is using a contract to eliminate liability for gross negligence and intentional torts under Maryland law carriers and parties. It's the elite case, which is 620 HD. But if you don't think an intentional breach of conduct is intentional misconduct. I don't think that's what it's meant to capture because again in Maryland, you are allowed to limit liability in this way for alleged intentional breaches of contract. And that's 620 A2D, A2D, 1372 at 1379 to 80. But even if that were the case, even if 26.2 excluded from its scope, intentional breaches of contract. Verizon had a policy based on the way it ran its own network in order to protect its own customers. You have to remember that these interconnection facilities, they're used by thousands or tens of thousands of people to carry all sorts of calls. Whereas the wire that runs to your house or my house obviously just serves us. If you failures are horrible and obviously carriers strive to avoid them, but a failure that affects my line affects me. A failure that affects a line that connects two networks or two major switching centers within a network affects tens of thousands of people. Verizon engineered those interconnection facilities to a much higher standard within its own network. And for the three years prior to core attempting to get interconnection, this was the way Verizon was doing it with every other competitor in Maryland. Right, East Spire, who core was buying service from in 1997 to provide the same services it would provide once it switched over to become a competitive local telephone company, was interconnected in that same way. Verizon had a quite reasonable view that this was the way a telephone company should operate to ensure that those high capacity multi-user connections were redundant and safe. But you've reached the contract. We were found to I agree your honor. Right, so they have questions whether or not it was intentional or breach. And I'd point out the hearing examiner found that our breach was because we refused to amend the contract. The Maryland commission found that our breach was because we refused to accept the course request as a waiver of the contract. This core found that we breached the contract, the district core found that we didn't. I don't think you could find that Verizon having that policy and that belief about the appropriate way to interconnect was malicious. The intentional misconduct phrase has got of something more than a simple breach. There has to be a difference between those two concepts. And the district court says, okay, there's been an adjudication of a breach. But there has to be something that really something of a greater nature to rise to the point where consequential damages are awarded. That the exception and that the exclusion of consequential damages in what I guess is 26.2 is meant to be an exception rather than a rule. And that it's historically been the case that limitations on consequential damages are permissible. They're legitimate provisions. The Public Service Commission permits them. So the real question here is a judgment call as to whether the behavior in this point was sufficiently egregious to bring in the exception. But it is supposed to be an exception. It's not supposed to cover the normal situation. So tell me just in plain language why this is a garden variety breach. I mean, there was a disagreement. But it's the law of the case now as a result of our previous decision that there's been a breach. So your burden is to say why it's the garden variety breach as opposed to something that bumps up several levels to the point where consequential damages are awarded. And I'd like to just tell me in plain terms why your clients contact is not egregious. Because that's the whole bottle of water. Absolutely, honor. So as to the policy that said we're going to use dedicated facilities and not retail facilities for interconnection. That's something that Verizon had done successfully with other competitors in Maryland and other states prior to 1999. It was how eSpyer, for example, was interconnected. Yes, there was obviously a disagreement and we lost on that disagreement though in a variety of ways along the way. Although most recently core sites are a more recent decision from the Maryland Commission which found that our policy was not actually in breach of their Damascus agreement. So I don't think you can look at the fact that Verizon had this policy and suggested it was doing a fairies. Well, there's a difference. Can you have a habit of doing this? Well, we had a policy because it was the way Verizon's engineers thought telephone networks should be built for the benefit of customers. And that's, I think it may be a turned out, it violated the contract but I don't think having that policy is an anyway interesting. That's right, it does violate the law when your policy runs counter to your duty to interconnect with local telephone carriers. I agree with you. Now in that way. That's why you can't hide under your policy to say we're going to effectively write that out. And I think you're going to leave this continued answering judge Wilkins. I was, I was, my point, your honor is it was a good faith disagreement. There is no evidence that Verizon adopted that policy with an intent to hinder or delay competitors to the extent it was a breach. Companies disagree about what their contracts mean. The problem with the problem was not your difference in how you connected retail and commercial. The gravity is whether or not you purposely abort it. And did not or conceal the fact that you were telling them on one hand, oh, we can't connect you because there's a retail customer connected, presumably knowing all along that they were the customers and could have done so. That's the question. Let me get to that. Why is that not just lying? So, well, first of all, you're honest, they withdrew their claim of affirmative misrepresentation. It's in footnote two of the judge's opinion and that's at page 628 of the joint. Just a stone for the surf that there's no waiver. Just answer that question. Why is that not evidence? There's no waiver. Let me finish my question. Let me finish my question. Question is, why is that not evidence that you deliberately misled core by not telling them that they were the supposed retail customer that prevented you from complying with the federal law of interconnection? That's the question. Your honor, there is literally no evidence that we told them anything other than that there was a retail customer. We did not. There is no evidence that we told them that it was a customer other than core. They made that assertion and they knew it was the customer. Of course, core knew it was the customer. Mr. Mingo had gone to the site. I mean, if they ever looked at it. Well, why wouldn't they be aware of that? I have no idea. But if you look at the letter that Mr. Van De Verk sent, and this is a page 469 of the joint appendix, it's in the 1234th full paragraph. Core says not, Verizon, please tell us who the retail customers. Of course, we are working with our existing retail telecommunications service provider, i.e. eSpyer, to identify that existing customer. So, Core didn't say, please tell us who it is. Core said, we're going to figure it out ourselves. There is no evidence that Verizon did anything other than say this is cataloged in our system as a retail facility. There is something else on this. Judge Mott's in the district court level made some comments about, well, he found that there was absolutely no bad faith on your part of no intentional misconduct. But he got a little bit, he dug in a little bit, he obviously didn't like the fact that the prior case had adjudicated a breach. And he said, well, a pellet court don't find facts, et cetera. Is the district still digging in against the mandate here? No, Your Honor. The mandate, this court found that we breached the contract, and it remanded for the judge to further consider whether Core had a standalone claim for the breach of the implied duty of good faith and fair dealing in the contract. He adjudicated that, allowed Core to attempt to present the damages case. And Judge Mott's found that, but he wouldn't just dig an in. No, Your Honor. And again, Core didn't put in evidence. Core asserted that somehow this Court's background section of its opinion entitled to summary judgment on its tort claims. When tort claims were never litigated in front of the Maryland Commission, the Maryland Commission had no reason to consider issues of intent or issues of reliance. The Public Service Commission, the Public Service Commission said we breached the implied duty of good faith and fair dealing. What do you do with that plan? You do two things, but the first one we want on that issue. We wanted it initially in front of Judge Mott's and after remand, we wanted it again, because there is no such thing in Maryland as a standalone breach of the duty of good faith and fair dealing. But most importantly, under Maryland law, all that breaches is it's an implied contract term. There's no intent element to the, I mean, I know it's like fraudulent jointer, Your Honor's. Right, fraudulent jointer is something you can do without any malice or you just make a mistake. You pick a defendant who it turns out you really don't have a claim against. Not because you're really trying to stay out of federal court, because you made a mistake. The breach of the implied duty of good faith and fair dealing does not mean you acted in bad faith. All it means is you did a breach of the contract that like all breaches denies the other party, one of the benefits of the bargain. So you can't look at that reversed again and conceitably reversed. This records opinion makes clear that court agreed that it had no standalone claim. And the Maryland Commission had no legal basis for that claim. You can't conclude from that a factual finding that's binding, especially in light of all the evidence that come to light that Verizon was acting. In a malicious way that might trigger an exception under section 26.2. Your Honor, in my time that. Is anything furlough just just a couple of things I'd like to my delay was three months at most. It was not four to six months to the sent that's relevant. I think it is as the FCC found in the Cavalier case. Allow on the relatively short period of the delay is a dissed additional. In this show the fact that there was no bad faith. Actually, I just wanted to clear up the record so that the court was not. The delay but there's the length of the delay speak to the question of intentional mishandling. Your Honor, I think the relevant the only relevant thing I draw from that and this is in the record in the prior case is that in building the dedicated facilities for court Verizon did it faster than it did it for everyone else that it was building those four at the time. So I do think that that suggests that we were not acting in a dilatory or pernicious manner. Somebody judge me. When is it? When some rejected granted by the district court. Some of the other was granted on the damages issues. Yes, and on the question of the gift for. All factual inferences are to be in the favor of whom. Your Honor, they would go in favor of. I was just exact. So but you you're talking about a whole lot of facts that we just need to accept like three months automatically. Going the fact to give them the you give them to six months. Well, you're all I'm saying is that this court question. What was the link that I was very interested in you for the purpose of summary judgment purposes. You'd be willing to give them the six months. When you are your your your prior opinion states the relevant dates. I was just clarifying your law. But transcripts. We're not you know not every. Yeah, not every question is a hostile question. Some of them are. But they're entitled to the facts on summary judgment. Right. I think the facts on summary judgment title. If it's between if there's a question of whether there's three months or six months, they get it. Okay, that's true. But my point was simply that there's no question. Why not make any difference, but they get it. I my point was only that there was no question about what about the length of they requested three months. They exact. There's no question. No evidence ball to say it's for no six. We requested to be done. I was a member of the law of the six months delayed is not evidence that you were intentional intentional. Just so I can be clear my answers. There was a question asked of Mr. Glitner has to how long the delay was the record is absolutely clear and there's no dispute. Or wanted the interconnection to be in place by mid September. It was in place by mid December. So that's not six months. That's three months. The second question to judge Wilkinson asked as well as that relevant to intent and it's obviously not something that the district or relied on one way or the other. But I was simply adding because I got a question. I mean, if it would make it it would make a difference to me if it were three months as opposed to 18 months or or not just in terms of damages, but it also in terms of for the 26.2 kicks in. And I was simply noting that the prior record in this case, which is of course the record. I suppose technically it's still part of the record here. The undisputed facts were that Verizon completed this faster for core than for other people. All right. Thank you. That's all I was trying to appreciate. We need some rebuttal here from Mr. Glitner. Thank you, y'all. On the contract issue, the real reason that we are here on the contract or Xcropatory clause issue is a failure of imagination. Neither Congress went past the law. The FCC when it promulgated the rules. The Maryland Public Service Commission when it has been interpreting these rules or even the lawyers who drafted this contract. The core has accepted imagined that an I-LEC might refuse to interconnect, which is what Verizon has been found to not have breached the contract by. Because they have failed to imagine that they would refuse to interconnect, there are no provisions that talk to it. I'm not sure I find that very persuasive. We're supposed to resolve this on the basis of Congress's failure of imagination. I'm saying that the contract itself because it goes from the Congress down to the contract said, there is no provision for what happens if they fail to connect. That's because they left some things to be negotiated between the parties. Congress wasn't trying to write these contracts. All the eventualities that might arise, including a refusal to connect, that's the whole point of the contract. It's not that the whole scheme isn't set up for Congress to draft the contract. Congress left it to the parties, to the established company, and then to the new arrival. He said, okay, you negotiate the terms of your relationship yourself. It does, but as GlobalNaps tells us, the interconnection portion was a duty and not a service. We contract our service and we contract how you were to do your duty of interconnecting with us. But we don't imagine that we're not going to interconnect. We imagine what will happen after we interconnect the services port. We have things like 26.2, which tells us what our remedies are. You've got contractually, it's perfectly fair to say that you should take a look at the eventuality that there may be a delay in the connection. If that were in the contract, anywhere I would agree with your honor. But the interconnection is talked about 27.1, which is what this court found, Verizon breached, and 27.3 says we're allowed to apply to a court and does not limit us to limit us away from consequential damages. It's 26.2 that does that. 26.2 talks about services. Again, the bridge is connection, allowing the cars to cross back and forth to transport information and to terminate information. That is the service. 26.2 tells us what happens when the service is port. It doesn't tell us what happens when they just refuse to interconnect. It's an amazing experience. It's got a hard case where you come to a false circuit and you win if there's a breach. You go back to the district court and I'm going to grant summary judgment on your damages. That's the case. We really have to look very careful there because I'll make sure that our mandates are being carried out. You're right. You'd be arguing their factual questions. It's like goodness, you win as a breach. Nancy, on this case, Verizon is almost most of the argument is still arguing whether or not they actually breach. Almost. Most of it, whether he was arguing about was whether or not there was a bridge. They're still arguing with that. It seemed like the district court was still involving that. Why aren't you arguing that there are factual questions about your damages? Okay. Well, there's obviously factual questions about our damages. We have a very lengthy expert damages report filed in a sealed version and they're going to be fights about what our damages are. And we should be able to get in front of a jury and figure out what our damages are. Is that what you want? You want to sit back for a jury trial, right? Absolutely. You're on. Even on the tort claims, we're not asking, and though yes, we prefer to. We're not asking for summary judgment that we win. We're asking for summary judgment that we get a jury trial. How many experts you got? One expert, which is one more than they had. One more than they had. It's only one expert. Yes, you're right. But the report's all sealed. We can't see that. But you can. It's available to you. That is sealed in the record, but it's available to you. And so you've got that expert. They're disagreeing with our damages, which I understand. And that's what a jury should be about. To the point I can't imagine why were you arguing about imagination. It's clear. That's what federalism is. Yes, Your Honor. That's why if Maryland law takes care of the damages and those. One of not does a tort and whether or not that. And the federal law is an outside duty, which is amounts to. And perhaps the fiduciary duty. And that's what in the tort sometime arise on. And that's where I was trying to go, Your Honor. Judge Montz reversed himself. He initially said that the extol territory call cannot stand. But he said that he cannot stand because it frustrates the federal statute. The rise of came along and said that we didn't argue that. I was reconsidering. So again, that when you came back on the motion to reconsider. Yes, Your Honor. Okay. And Verizon said that the court did not argue that. And they're right. We didn't argue it. And we didn't argue it then. And we didn't argue it in our brief years because I cannot find a case. I can put before this court that says frustration of statute is a reason to. For us to win. But I would argue that Judge Montz was right. Not allowing damages absolutely frustrates the statute. And I would argue that he should not have reversed himself that our motion is an application for an order. And even if we did not refit, he is allowed to find for us for any legal reason. He finds fit. And I would argue that this court should find that not allowing damages frustrates the statute. And does not give it any force or effect. Because Verizon says that there was a must they didn't know because of their company's big. And they had their own standards of connection. And they may be right. Nobody's saying nobody. No one is saying about it. Live. The question is these are factual questions as a whether or not it amounts to it. And you entitled to a jury. That's what we're saying. That's what we're saying. Right. We're saying that their argument that our one hand didn't know what the other hand was doing was good until we sent the letter. We're saying that there are plenty of factual issues about what our damage is should be. And not to bring it up again, but we're saying there are factual issues as to whether or not we should be allowed to get our torque claims in Maryland law. Even if for circuit law doesn't Maryland law allows it to be a tribal issue of fact that's their intentional misconduct. Yes, Your Honor, but we're arguing that the facts as are in the record the 14 year record of this case are plenty to get us there. This is a recalcitrant. They've heard imputed with knowledge as to who the retail customer is correct. So again, Your Honor, they're imputed with knowledge as to who the retail customer was that was blocking you. Yes, Your Honor. You have to be imputed with that. I would argue they're imputed with it to begin with, but to the extent that they're going to argue that they did not know that the retail and the wholesale divisions didn't know what each other were doing when we sent the letter on August 20 of 1999. They had a duty at that point for the retail division and the wholesale division talk to each other. So I agree with your honor that they reached a duty before we sent the letter, but they definitely reached it after we sent the letter. Thank you, Your Honor. All right, we will come down in the Greek Council and then we will see it after a very brief recess into our final case. Or we'll take a brief recess