do not include that the defendant acted for his own gain case he states that liability may be imposed if the person knows the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement was set up a sham structure for the purchase so that they had t d buying a group of assets here and the heart all right lead market maker and that purchased by t v options which at the time of this structuring didn't even knowing about the arbitration proceedings so the allegation is that they knew of the duty they knew of the relationship they materially and substantially assisted in the breach of the relationship that the sham structure designed to conceal the t and go their separate ways that would be different but that was not the case here in any and then this case was thrown out for lack of a f a allocation of independent economic  been briefed but under under the governing law of illinois law which governed the relationship between j s s and m j t there was a continuing producer relationship he continued to be in a joint venture and j t continued to have pro correct but that didn't extinguish j s s obligations under the agreement i was continuing to hold and jaycee's property its interest in the with market maker  lesser seeking to further their own gain then the cases have been really honestly quite confused about this and this is the district court in new also and attempted to sort it out and said you have aiding and abetting liability here and you have conspiracy liability there that one requires acting to further your own gain this one does not and we raise nelson below and it has to be correctly asserted at the time that was alone federal case on the issue of state law and then casey came along it and then proceed to address the issue of knowledge it does not even speak to the question of financial gain it's been an element and regarding the court's comment that the origins of this financial gain element may be less  appreciated i don't i think the course moving on beyond the question of is there financial gain to whether financial gain is adequately stated in terms of just alleging that they were trying to attain financial gain whether or obtained it and that was an issue that was not raised to a district court i know it's just it's not clear to me in california whether financial gain is required or not and i mean that if it's not required then it would seem to me that you would still be in the last hit if it is required that as to what the district court said it was correct very well tell me what if financial gain is not required what's the parade of horribles that briefing but the supreme court did recognize that there are substantial costs imposed on business transactions that may exceed the benefits of imposing liability so reasonable minds can differ as to whether or not that's a good element to have as part of the t and i would point out that regarding their opportunity to plead financial gain they took discovery in arbitration they arbitrated this issue at length then they filed their complaint and they said in no way question of purchase price we're just saying this is the only way we're doing a deal or we walk away from the deal and i would not see financial gain there in regard to the issue and the difference between having a deal and not having a deal is not financial goin before the nielsen court changed its mind and so the financial gain was not an so itself acknowledge that ordinary business transactions do not qualify as financial gain and in terms of there being a contradiction and ready shows that the court has  discretion to decide whether there is a contradiction in the pleadings and i think any reasonable reading of their pleadings which were well informed pleadings made repeatedly saying that there was no benefit in i think that just the court was well within its discretion to find that there was an amendment offered which would contradict its pleadings i think what you think your theory is here and probably the district courts so is that if you look at the if it's a fair fan's action it's an even deal in everybody's even at that point and therefore there's no gain simply by making the deal that seems to be the theory i think of the district who are and what they wanted was the deal and if they had to mark down the hill am isn't from one point two million to five hundred thousand and just reallocate the aspects they didn't care they were willing to do the had to make their to financial gain incorrect to say that the joint venture continued there was a contractual provision which allowed forty five days notice to terminate under the terms of the contract that's not the same as filing suit for breach of contract and as they believe that the contract survive and therefore all their duties whether fiduciary or in regard to response couple of things first of all even if we find that casey did not eliminate the financial gain requirement let's look at the facts of cases what was the financial gain that the financial gain there was ordinary banking fees nothing special nothing extraordinary nothing unique just the ordinary banking fees that the bank would have received doing a transaction for anyone else under any other certainly transaction i think dead would be s so it would see would meet that element of the lawsuit but it would not be subject you have other elements of the claim as well you have to know of the fiduciary duty and you have to substantially assist in its breach in other words if i go deposit money at a bank that i have stolen from a client then bank is not aiding and abetting my breach of producer duty unless the bank knows that there facilitating the transaction and they're lending substantial assistance to it and not just accepting deposits while not doing something else similarly in bankruptcy whitney what was the defendant doing in furtherance of its own gain it was trying to hire people that's all if they didn't need to plead that they were good employees that they got they just needed to plea that they were trying to hire people what people do every day and you know you're not subject to it to a lawsuit for aiding and abetting a breach of duty every time you hire someone in california while i have one last question if we agreed with you on the presumably not because the premise of that was that there were not were no damages and there might be damages the district court actually found that we were allowed to to speak punitive damages that mean that if there were or if there weren't damages but that was premise that you didn't have any viable cause of action on providing it that you might but if you had one then the question of whether you could get punitive damages without one is really not the point the district court i believe the district court found that if we had a cause of action that even if there were a procedural bar to recovering damages so long as we could prove that njt suffered damages we would be entitled to see i think it's damages because you still might have a of our first amended complaint that once the sham structure was in place that the amount taken from this vos of what t d was getting paid and transferred over here to what would be part of the t d options deal was irrelevant to t d because they were paying