corporation had one shareholder and one executive essentially right exactly right would that not always be a no the riego not it's not it's not always an alter ego for exactly the reasons that a secret push doesn't even have to recognize that as a general principle because the plaintiffs received extensive benefits throughout the course of litigation from treated the property injunction in canada so they treated them the same throughout and now suddenly at the end of the base they're trying to claim that they're different they don't believe they should be able to do that second point unclean hands defense of defendants were allowed to here what played to is taken the principle that unclean hands must in some sense in some have some major effect on the balance of equities between the parties and turn that into a principle in which a district court can somehow balance equities between the parties to eliminate one thing hence the fence so let me ask you a question about this so say in this case on the application state the false statements were someone misstating their age and their attitude and not i intention of making the loans whether someone qualified or not what would the difference be the difference would be that in the case we're dealing with here the wrongdoing by the borrowers is defined as a federal criminal act making a mortgage or a material misrepresentation on a mortgage application is a better real crime that doesn't mean misstep misspelling your name well what if someone had checked a box saying they were hispanic and they weren't again that wouldn't be a very an allegation that is material wealth while it would be a federal crime try eighteen u s c tempore change it's a federal crime you can make a each there was never any intention to pay but two to two to find these loans they could have said they were a man on the you would have funded it anyway so what difference does it make this first place or the testimony on that is undisputed testimony even plaintiffs have admitted that that's the way it up or it that's the way the lenders operate that is the way that the one loan they funded operated because there were no m representations when they did the due diligence on that particular look at it contained a issued a long commitment based upon a survey of what they perceived to be the financial stability does it follow that one would be carefully scrutinizing the accuracy of their financial stability in whether to fund a loan know whether to plan the loan which implies that you would ever consider finding a loan to begin with understand your we submitted as evidence in the at trial sample loan applications and we had in fact in the courtroom fifty or sixty boxes so those loan applications and in each of those applications there were due diligence activities that were conducted that indicated that hutchinson was going to carefully scrutinize the conditions that were represented in the loan applications let's not forget that there were initially allocations again allegations against an appraiser in this case that somehow he was involved in the scheme that's allegations were dismissed because there was no but the evidence shows that the appraiser went out he's an experienced real estate guy in canada th real estate like the back of his head more than probably i know about civil rico at this moment and inspected the properties to do hands on the ground to diligence and that is an indication that there was due effect but did not the jury have to determine there was no intent to actually get these people loans which would make this due diligence nothing more than a charade i don't believe so your honor because if in to preclude them from asserting that claim based on the unclean hands theory but it doesn't have any you can you say well look we're doing this due diligence where we're getting an appraisal well you charge them for it they were getting an appraisal they had to pay for it and so you were getting all of their money with it and in that you have a finding that there were never going to fund the loans that you couldn't have funded the loans so there's no connection between their false isn't there an argument here that that she had possibly continuous on in systematic context of the united states through her prior activity i think the way i read it you're saying look the account was testimony related to things she was doing before this alleged scheme occurred so there's no there's no contact that she got that she didn't have contacts with the united states and you're just saying in specific with this  of question for what if she were the mastermind she organized she told people what to do to cheat never did one thing in the united states would she be free of liability because of lack of jurisdiction in that circumstance touches citizens in colorado that's intended to touch citizens in colorado citizens of colorado then why isn't that sufficient to give power out of using the colorado long arm statute to provide for jurisdiction is  was a primary participant in the scheme and at the motion to dismiss stage judge jackson and the district court found those allegations were sufficient that the issue was raised again at summary judgment and pla came forward with affidavits from randy because our who you're on the judge carson was referring to he was their ex business partner and mark will pay this who was their former accountant they put sworn declarations in the record judge jackson found that summary judgment sufficient evidence to show that time did not use was an active participant in the scheme now was that when the scheme was restricted to canadian pic with was there any activity by this scheme in the united states at the time of the evidence showing her participation yes sure let's remember the class period in this case as certified by the judge jackson my understanding when i heard and what i want from you is an answer as to you and that is predicated on some notion i think that if you were she was a conspirator that would not be enough to to link her to the activities of the skein in colorado as a matter of law is that right as a matter of law if as the district court and the juror pushed with which she was an active participant in the scheme then yes absolutely that's enough to hold her enterprise ok and then the scheme expanded to the united states but there's no evidence of her involvement once the expansion took place then you have a that she never received a penny that her children never received a penny or proper the snow received a penny she swore that under oath to the district court in an affidavit that we called her to the stand on day six of the trial she was cross examined about the financial statements for canadian funding three away elegant and first central mortgage and she admitted receiving vast sums of money in two thousand and eight two thousand and two thousand ten which takes us well into the class period in the united states and what do you what do you encourage from the fact that she received to receive the puns would be enough it should do what she did you know that shows what there's a parallel question is case we have to show active participation for jurisdiction under that test positive by judge jackson we also have to show some degree of participation on her part under the operational and management test for section hundred sixty two c liability she has to play some part in managing the enterprise we had sufficient proof as to both ways and that's why the case went to the jury never the jury was out for about two hours they had no trouble figuring out what happened to it what was your proof of her management and active participation our proof was it was because our testimony at the front end of the enterprise the two thousand and four two thousand and five two thousand and six two coupled with receipt of money during the us activity period all related to the seder the problem all related to the same your purpose ok well that last statement all related to the same enterprise if the dues are testimony related to the canadian wing of that enterprise and that's all you hannah and she receives money and under the obligation receiving dirty money is not enough i'm i'm getting a little concerned here with what it what it w have i mean because the receipt of the money is not enough because our testimony provides an m friends i know you know we can rely on entrances but there still needs to be some evidence of her participation when it went into the united states and are you lying  connection with the enterprise as it related to canada or related to the united states as it related to canada well of you are right then that's my point as it relates to camp that you can get it in france it she continued on yes with the and with the activity but victims yes ok absolutely so is it your urgent that the receipt of the money in the later periods is evidence that the enterprise continued from canadian activity into the us activity in that she was actively participating in the us activist and the only differences he adds two more wheels to the enterprise when he when he starts use he builds the first group he forms the first three corporate entities and then he forms normal capital and then incredibly while this case is going on in twenty eleven in the district court he forms g e i have great easter and he continues to carry out the five so called hutchins entities or if they will we we call them to be strictly lenders because none of them ever made a loan there's five of them that were owned by sandy incorporated by sandy we put into evidence that egos of the same individual that it's alleged in the complaint it was not we did not proceed on that theory at trial as judge jackson found judge jackson said it still wouldn't make a difference judge jackson has addressed this issue at it and please remember please remember this first of all under this court's decision in safe streets alliance versus hickenlooper which is the recent marijuana case from twenty seventeen and under the george vs urban settlement case from the score in twenty sixteen which we rely on and which they don't even cite this is a textbook rico case we judge jackson hit every ball right down the middle and he has more than a dozen to us that he was we're here to determine right whether just jacks a guess i'll guess what i think you'll see that every issue that he ruled on he made a very careful record involving citation of of authority it is with regard to on clean hands he didn't present them he didn't prevent them from offering proof of the fact that  major misrepresentation there are one hundred twenty five borrowers in this class if you look at our trial exhibit sixty four which is the chart prepared our expert or c p a financial fraud guy you can utah and another borrower by the name of arthur pie who we deposed on a videotape if there was anything untoward about any of these borrowers opposing counsel had every opportunity to cross examine them at trial and to try and pollute the prove that any of them had unclean hands and in some cases the cross examination of the bar in which lasted five minutes did they ask any of them if they had lied on their application absolutely absolutely james medical from who is a distinguished businessman from las vegas nevada was cross examined about whether or not he had allegedly made material misrepresentations on his mortgage for the jury heard all this ok misrepresentations presented and they tried to do to the extent they have it and are quite you know our class representatives fought back and said no i didn't make this i just representation i just want to be clear i mean there could be a few ways to do this one those statements will be a bit misrepresentations those statements really wouldn't matter because the nature of the scheme was is such that nobody cared whether they were true or not and therefore there was not a connection between any discover exceptions of sixty two thousand dollars which they refused we went to judge jackson asked him to hold him in contempt which he did in october docket we were going thirty five he assessed a five close period why did it begin several years before any of the victims in the class had invested had had paid any money what's the purpose of that based so it's and it's very customary for the courts to define a class beginning at an earlier date because you don't know which victims you're going to find when you start looking at victims and in fact in this case after we relief to restrain or prevent some language like that and that's looking forward to constructive trust remedy looks back to what your authority  continue to operate the hutchens properties there are mostly apartment houses in ontario multi family dwellings they generate monthly income which could and should be used to satisfy the judgment which they owe and how does this construct a trust affect their ability to prevent or restrain them from doing that or from doing rico violations or actually feel or yes i understand i believe that section  sixty four empowers the district court to award sufficient relief going forward and looking backward where necessary we're going to start to enforce the judgment was that the statute doesn't say that as it relates to this particular probably prevent or restrain is forward looking language yes and as as i've said these properties continue to generate money that could should be used to satisfy our client's judgment and i do apologize i should be able to recall that but i don't want to make a mistake ok it's sort of it's certainly it certainly wasn't a focus because we didn't think the unclean hands was at issue the what was that issue at trial according to the classification opinion of the tenth circuit was whether the winner was with jet it ok that was the fundamental issue a trial that's what the te become the focus of your your approach at trial that's correct ok that absolutely correct and i want to be clear about that it wasn't just a case where judge jackson said well you can go ahead right over here you can introduce a little bit of evidence o counsel says that you did cross examine them but that evidence that way whether it's of any moment or not and the evidence was in the record well the fact if i if i would just assume that i would have done the same cross examination