centers there's sort of a hub bub as people get leaving so we'll just wait a couple minutes and my feelings are a little hurt well i must say there's a diminished interest in your argument it appears  didn't bring your audience with think about my feelings gay seems like things have subsided erred in granting summary judgment this missing the action against the c i finding that there was no issue of fact to be decided and accordingly the judgment below should be reversed the only thing i think that the  appellate agree on is that the star was the victim of an elaborate fraud and that for what could not have happened but for the actions of the conduct of the c i the judge and as well as in his brief decision at the end of the transcript was that he was concerned that there was no direct contact the t c i never had any direct contact or communication with starr funding that's not necessary your honour's no direct contact by the principal to the third party is necessary apparent authority can be created merely by appointing somebody to a position such as a manager which carries with it the recognized duties of that person and the other on the other hand yes or the court asked you and this is three ninety to the appendix is there some testimony in this case by anybody on your side with their side that a person with this kind of time in any of these businesses necessarily has this is the r d and you said no you the answer is that we at what happened was in that taking it out of context i said that we're talking about we were talking about the leas i believe the court was talking about the tire industry and that there is nothing different about the tire initially than all the other industries star star looked at if you if you look at your honor it's in found in the appendix other industry are we in but the tire industry well but but sistar funding stop funding finances so they deal they deal it thousands of transactions in a myriad of industries all they basically doing is is funding basically commodities attire is nothing more than a commodity like any other commodity they want to take the testimony was and if you read in the record iran or and in the appendix three ninety five to four hundred that's where i advised the court that the vice president of start funding john and i heard testified then enter twenty years of experience in doing purchase sort of financing that persons who have the title of business development manager generally have the authority to do the kind of transaction that is involved here that's that's in the wreckage but as far as its high redistrict concern is concerned i admit to the court i have no evidence that that means that and it's higher in history but that but according to the according to the plaintive there is no reason there is no reason and basis for the plaintiffs to believe that the tire industry should be different than any other industry does nothing say on the document that it is a purchaser and what the but the plaintiff testified and again doing thousand transaction there is no one form of purchase order purchase orders come in all different forms  that this was a valid purchase order wasn't valid person they would be glad they would have done the transaction the transaction was was dependent on having a valid back up purchase order from a reliable credit worthy purchaser here if they had any doubts they would have done it what happened here was we believe that there was nothing that required any inquiry and i guess like this court heard held in the they heard because struction case i believe it's said that really what inquiry is really a another way of saying whether or not the in this case the plaintiff acted reasonable we believe it's a question of fact that your client shipped everybody knew was never intended to be shipped to the office that basically you have a purchase order yes in which the transaction is being mischaracterize we don't know you know know where it's going to be shipped we don't know who's going to take it we have no idea of the question but what i think this goes to your honor it goes to this fact a reasonable miss what they reasonable the judge the the district court found as a matter of law the fact of the district whatever got to the issue of reason was the district court decided the issue on three things he said at the very end he said when there was no apparent authority which we had met there was no top our authority to that there was no direct contact we agreed was not direct contact and three but a district court essentially held was the title of a business development manager as a matter of law could not of induced somebody into into doing this transaction and i think the court is wrong by that that's that's is that's a jury question that's a trial are selling inventory not acquiring and that's the problem here is this was a back up acquisition of inventory the namely these tires and what would what would make anyone think that a business development manager would have that kind of the tardy and responsibility well i submit your honor that they claim they claim is the powell was nothing more than a sales i'm not asking you that i'm asking you what evidence the to support it because to you can get you can say something's a question for the jury but there has to be enough evidence to do that would allow the jury to find in your favor and in the record in the record is the evidence of at the deposition of the plaintiff where where the plaintive testified that based upon and and it is in also in the in the oral argument as i pointed out before the district court on pages three ninety five to four hundred this point out that that star funding has been doing this since one thousand nine hundred ninety they've been dealing in thousands of transactions in a myriad of different industries with many many different commodities and what the vice president of star funding said that in and her experience and she was in her experience that somebody with the title of business development manager has the authority to do this type of transaction point to a single occasion when they had a transaction with a business develop with evidence that was enough to get you to a jury i believe your honor that that her testimony that this is her experience which which i think is as creates a question of fact whether or not they were reasonable i think it's i think it's era for the district court to hold that there was it was totally unreasonable for them to rely on the title of business development manager and i think that their experience over twenty years doing please the court my name is peter herzog and i represent higher centers a subsidiary of michelin the court can affirm the district court's grant of summary judgment on any one of three grounds first of all star funding advocates the wrong standard and the correct standard is that there has to be proof of misleading conduct on the part of the principal and admitted at argument and we've cited to it in the record that there was no misleading conduct on the part of the principal from my or center except for issuing the the business cards that gave this guy who are five title i don't know what it means either well that's correct your honor but it was that was his title that was not misleading conduct that was his actual title yes and he was going to develop a business you could develop depending on the business you're in you could develop business einstein with the business of selling stuff i don't think we're going to i think we've cited to the  several cases your honor where the courts have held that the title is not enough unless the title is of an executive level level title that carries with it implied forty to do certain actions on behalf of the corporation the second basis so start funding just has a wrong standard in new york the standard is misleading conduct on the part of the principal they advocate a different standard they advocate section twenty seven of the restatement section twenty seven of the restatement has never been adopted by the new york courts it was cited in one case but comment a which they rely on and the restatement itself has never been adopted by the new york courts it's not the law in new york but even if it was and this is what judge daniel said it argument even if it is you don't need it for the very reasons judge jacobs that you asked mr spears about he said where is your evidence mr spann is of this business development development manager title in the tire business having the authority to purchase tires and mr smith said i don't have any evidence of that and then he went on to say just as he did today but it isn't the tire business that's relevant and he's just wrong on that he saw the start funding sites to the property advice years case and the property advisors case dealt with a circumstance where they were looking at the duties of the individual in the industry where they were claiming that it was implied authority and the property advisors case said specifically that that's the industry you look at you don't look at mr space is clients industry you look at the industry that is where the alleged conduct that's giving rise to the claim of apparent authority is being evaluated in that context it was a commercial real estate building and there was a manager in the building who the evidence showed in new york generally these this profession this particular title in this particular industry generally negotiated the agreements on behalf of the landlord or landowners because there are so many landowners that are absent this was generally their responsibility there was no evidence of that in this case in this case the only evidence was that mr powell and business development manager and salesman at  were completely precluded from making tire purchases that was the evidence there was a specific policy in place at d c i to prevent and prohibit it salesman from making tire purchases and there was a specific policy in place here so those are two independent basis on which the court can affirm the third one is that there were red can affirm on any basis it's found in the record and that basis is the attic we look at what the district were doing how do we do that without the district court reaching that issue i think you can do it on the basis of the materials in the record your honor the materials in the record establishing in in you raised a number of questions about them yourselves this is these are the purchase orders that are at issue there it to twenty seven and to thirty nine of the appendix the court the court can and we've cited to the various testimony that's in the record the court can take a look at it there are a there are a large number of irregularities that that the court has already noticed in some respect one thing i will tell you though that i think the court can easily conclude mr is in his brief tells you you know care what a purchase order looks like they're not worried about that all they care about is that the purchase order reflects that the purchaser is going to buy the same goods and are being purchased by his client on behalf of who is actually financing and in on these purchase orders your honor the tires are not described by serial numbers they're just general description of these big earth mover tires without the serial numbers on the tires now these tires i think the court knows from our briefing these tires sell they're specially manufactured they sell for thirty to fifty thousand dollars each in times of high demand overseas a secondary market they can  can sell for sixty seventy eighty thousand dollars each the they all have serial numbers on them and unless you have the serial numbers on the invoice there's no way to what do we do the fact that star funding is in the business of financing purchase orders and they finance purchase orders for tires if it was a circus they would do purchase orders for elephants they deal in in every which area and the question is then is it are we looking at the reasonable miss of the kind of inquiry that would be made by a company like star funding which does not have knowledge of individual practices in individual industries but just relies upon the fact that people have some external  didn't know that and i'm the truths are funding should be required to know that let me answer that in in two ways your honor the duty to inquire arises when ever there is a novel transaction or an unusual transaction or whenever there are facts that would cause a party to be put on notice that something may be askew this was unquestionably a novel transaction for star funding they had never been in the business of doing purchase order financing for a wholesale tire business previous that is not unreasonable if you're in the purchase sort of financing business to be financing purchase orders in various industries none of which you may know a lot about and i understand that your honor and what the testimony was was that they had done and i think it was ms earhart who said we've done zillions because illions of purchase order financing transactions previously and guess how many times in those of transactions they had ever required a backup purchaser this was the first they understood that this was a novel unusual transaction that they had not been previously involved in that's an admission on that on its own your honor that they needed to conduct a reasonable inquiry they didn't conduct a reasonable inquiry despite all of these red flags that came into existence what if they've never done one of these transactions before and they never in a gives zillion transactions have ever required a backup purchaser what does that tell you they were concerned but rather than a reasonable inquiry they asked one individual who they were concerned about why they were buying the tires from the person they were supposedly or why they were selling the tires to the person they were supposedly buying them from and didn't follow up and then ask why if if you're buying the tires are you delivering them to the person that you are buying them from these were all reasonable inquiries that could have been made that should have been made that would have uncovered what they claimed was the fraud that was perpetrated on them that was also about my colleague here again harps on the leading misleading conduct again the we've cited several cases in the in our brief that apparent authority can be created merely by appointing a person to positions such as a manager now it is true and those cases all refer to the restatement second of agency section twenty seven while it is true it has not been formally adopted by  state of new york it has certainly been followed by the courts in the state of new york including the court of appeals since one thousand eight hundred in a case where i think we judge few expert so it it is maybe not mandatory but it has certainly been followed by including by the highest court of the state of new york time tire sentences not just they don't sell time is there a deal or industry they buy and sell this this particular transaction when smoked made good business sense they were going to get these record that indicates that that any way that star funding had any inkling why would why would back a purchaser want the goods to be delivered to the seller the backup purchaser got to call some office and and north carolina or something and find out whether you really have the authority to do what you did doing i don't think so the couple million dollars his eyes yes judge it was kind of reached the point where couple million dollars isn't worth make but in the business of selling these ties and buying and selling ties and he said like he says i can get it these are hot commodities as many as i get my hands on i can get rid of and i can sell i'm pleased to get whatever i can get it all made sense the and they gave them all the trappings  of a trade is rather of the of somebody and i kind of authority you know fraud always makes sense it does it's all after but if he was just a salesman if he was just a salesman why didn't he have a title salesman sales executive that i understand tiles do matter and the foot locker case which they cite there was somebody who is a director of marketing and somebody who was the head of franchise and they did something with regard to accounts and they verified accounts receivable who has the authority to develop new markets to products new ways of of getting business other than standard selling the product that's what a business development manager is supposed to do if it was just a salesman why name calling the salesman i submit judge the questions here are the issues here and i admit there are issues but their issue of fact that should be tried by a jury thank you ron is thank you both reserve decision