once that was resolved that dispute was over in this case this involves not just the acquisition of a license but also the operation of the casino was that the one defendants not only had numerous predicate acts in connection with the application for the license but also committed serious accident mounted to crimes connection with their operation of other enterprises and it was that predilection to commit crimes to commit these kind of predicate acts which we submit the tester court should have taken into consideration in determining whether or not there was a likelihood that the racketeering activity would extend beyond the mere granting of the license and in fact there was evidence in the record that that's exactly what happened a license was granted in september of two thousand and fourteen some five years later in massachusetts gaming commission had to bring when messages and the wind sentence before it because it was disclosed st in a wall street journal article and then subsequently admitted to but when defendants but they hadn't gauged the behavior that became the license operator and under the massachusetts gaming act the operator is to maintain their suitability well before and after the license so what we had in this case with  activity is starch yes let's hear a point in time when there was a binding lease agreement between your client and mohican no there was the terms your honor casino because under the license application the sight of the casino one along with the application so unless you can son was going to back out on the side of thanks to the license but we don't want it was standing all this effort we've made directly injured party and not a secondary part he's so what is your response to that here you've made a foreseeability argument but that doesn't get you very far but your harmed unless somebody gets the license and it's not them gets so in that sense it's indirect well iran how how were you different from the people who were going to provide the furniture because the people who were going to provide the furniture didn't have to go through the suitability process did not have to disclose every aspect of their d financial life and or known to the commission we were an apple applicant in the sense that we have approximate cause is a uniquely factual issue as we started our brief proximate cause we need to show that all i'm saying is that in this case we know one fact is necessarily true if mohican decided not to seek  found to be within the no no but this is the case law proximate cause in the case you don't have to rule out every possible way that you could have been injured in another way for proximate cause you have to show plausibility that you were injured as a is just like you are laying out and why the fact that it can't prove to a certainty that they would get a license might not prevent them from meeting their causation test but you're to rivet of a mohican that's the thing that's unusual and i just don't know  which somebody who's written it in that way can satisfy proximate cause  is also about the continuation of the licensing requirements as star encore but once he can is not given no license how is it you have any possible injury about ongoing licensing requirements for encore well it doesn't get license the leg of your argument about there being a continuing violation beyond the single issue of who gets the license no because as we are as sexual misconduct they were going to continue the license and they weren't going to get into the question of what they would have done had it been disclosed at the time doesn't that also cut off one if we reject your notion that you have adequately for purposes of a motion to dismiss plaid rico cries haitian and claim about the denial about the license then your stated claim this morning about the continuing requirements for encore one and the continuity if you could just run through it so i make sure i understand that with respect to open ended continuity if i understand what you're saying the idea is that this the activities of this enterprise that are being identified was a way of doing business in which they would have continued to lie to massachusetts regulators in ways that would have constituted racketeering acts even after they got the license so the sort of  otherwise it's sort of odd that you've got when mass in there with mass doesn't have any interest in doing anything to non baskin authorities but i think in connection with one mass you have to one possibility is you're saying they're going to trek the next state that they go to another possibility as you're saying that's evidence that they're going to continue to check massachusetts going forward the latter one makes a lot more sense to be done the is the going forward trickery of massachusetts gaming authorities post licensor that you have identified among post post the license  an actual predicate act is certainly indicative that they once again resorting to the kind of behavior that was going to conceal things from the commission prior to the war license you have continued business dealings with were a little bit the window of time it took to get the license is a period of time that under our case law isn't the shortest isn't the longest so could you just help me think through given how much time did trial in the united states gaining business was a find of this magnitude assessed and in order put in to watch over the management of it so obviously the any commission itself felt that there was a presenting with two colleagues and so with the court's permission i'm going to talk about the deficiency of the pattern allegations unless the court would prefer to start with proximate cause or anything else you counsel but we don't want to hear on thank you i'll take five minutes on the deficient pattern allegations and really three points that the court pressed mr starch on the the st one is this notion that the as he said you know that the that the defendants because they allegedly operated other enterprises through crimes somehow suggest open ended continuity with regard to the enterprises alleged here and judge sarus took that on specifically she said with regard to the association in fact enterprise that disbanded once the license was achieved and with regard to when massachusetts as as judge barron you pointed out that entity and its operation was focused only on the obtaining forward concealment of new criminal activities of the time that they did event such as dealing with members of organized crime securing property to improve his you know it's that or another was the idea is there evidence that at least a motion to dismiss states would say the way of doing business is sufficiently through racketeering activity that they're going to run this casino in ways that are going to result in misrepresentations to the gaming commission out you were asked a specific question you can't just say in our continuing cover up of what happened before that is not the question before you could you answer that please well i thought the question before me was why wouldn't subsequent misrepresentation or failure to disclose extend the pattern in the end the answer is that there is nothing there are no new of when massachusetts yep and in massachusetts way of doing business is the criminal given who's working with them is the allegation that going forward we can be pretty sure that there is a high rest that they're going to continue to affiliate with organized crime persons when those new affiliations would be improper under the game a high then you would say it's open ended well but it and the lower court scrutinize those allegations and found st of all that those prior acts were were not predicate accident fact they're and says in conflict unproven acts were taken into consideration but that was with regard to continuity of the enterprise with the enterprise a continuing unit the cases are clear from  sufficiently in violation of the various procedures that it was reasonable to assume that the future sales not just the sales results the direct injuries but any future sales would also have been done sure i think you now see here as i was reading the brief was well look at how they conduct themselves in misleading the gaming commission to secure the license and look how they run their other operations people that are associated with this association in fact we can be pretty sure that going forward they're going to engage in problematic activities in operating it and conceal it that's the way of doing business of the enterprise and the members in the enterprise what's the problem with open ended those acts came to its attention said that there had been no violation of the impact fraud provisions of the gaming act by the failure to disclose so even that is not a predicate act but secondly judge no related entity is going to interact with the gaming commission that would suggest that they're going to operate in a way that's going to engage in predicate acts that they're conceal i just don't see why that that's not a reason for this from the pleadings this this there's absolutely no allegation that would allow that inference reasonably your honor the when bass obtained the license it was a finite event there is only one license in this region there is nothing more for when massachusetts to obtain the the alleged violations of the gaming act and when the license is procured in the discernible event was a subsequent coverup alleged what the with this court approved there was that that subsequent concealment in and of itself does not save a single stream from a deficient deficient continuity it's simply the the allegedly continued misrepresentation in order to preserve the original and if you just address the clothes on in one year two thousand and sixteen there are four sets of disclosures within eleven months all directed at a single objective and it's not simply what the scored a set an orthopedic so it's also the juliano case and the f are on case and so i think that the district court had it exactly right judge that there is no closed ended continuity here because of the single objective fine i accomplishments nothing more to be accomplished and really single victim even if you decide that the commission is an indirect victim that themselves suggest that open ended conspiracy would take place so and yes and that's what if you just i mean i still i'm not quite sure i understand the reason to think it couldn't tear i take the point you can't use it for close and that continuity but their idea is that you can draw the was formed for the purpose of applying for a category one license the medical plates that the protected acts were committed in order to unlawfully acquire the game license and if you look at the gaming commission of decision the gaming commission actually says that they that they didn't find any false statements in violation of massachusetts law on the application that they penalize when resorts but it was for something completely unrelated it was for not following their internal policies not for violation of the gaming act now in terms of proximate cause ation the entire case can be dismissed on that mohegan per the terms of its binding contract with no he didn't and as we just heard from mr storage i am not even sure it's correct because i think you said there was no binding ground lease with no egon did you argue proximate cause below yes we did your honor versus ideal steel and heavy group for city new york the supreme court affirmed such dismissals the nd circuit recently did so elsewhere the difference here is the court noted that sterling was not the applicant mohican the applicant and to the extent they had to go under a suitability study lots of people have to go under a suitability study i think the people who are the car dealers have to get license by the casinos so there's many people that are kind of three levels removed from the initial harm that would have to go under some sort of regulatory scrutiny in order to work at the casino or the vendors to the casino but we're not saying if you would if you would allow sterling to sue under rico as a potential landlord then really any party that's kind of three levels  removed from the harm like the car dealers the investment partners the other vendors could see wonder rico and with respect to a case or any authority under rivet of harm i think that there's two cases that and the insurers paid for it but in the rod in the immediate financial victim was the plaintiff insurance company who actually paid the defendant pfizer for the drugs and the court didn't have to grapple with a more immediate victim because the most immediate victim was the insurance company so there was also a complicated causal chain i i admit in the in the rotten the rancid case because these representations were being made to the doctors but the immediate financial victim was the insurance company actually paid for the drugs and here the immediate financial victim is mohican sun sterling's harm as with boateng chalet the car dealers or anybody else was wholly contingent on the direct harm to will he get and then just briefly in terms of the bridge case you know in the bridge case the defendant was bidding for a tax lien and the plaintiffs was the competitive bidder for the lease that's all that i had your hono district court understood the complaint the enterprise involving my client was restricted to making the false statements to the gaming commission on the original license application and in connection with that original license application  and the enterprises has it terminated after the license was granted to win now the complaint attempts to extend the f b t when enterprise a little bit by making it includes three allegation that subsequent to the beyond what congress would have intended the supreme court in cleveland this court made clear that false statements to maine to a state regulatory agency are not the type of conduct that should be you know within an exception to that the st exception under their wire fraud theory is where you have a license that someone is competing over and the nd is where the license is related to a casino i don't think either or particularly given the rule of l precedent for the district courts broad reading of the rico statute in that respect you know order to reverse the district court and send this case back to go to discovery this court necessarily needs to be the  st or in the country to hold the line on a casino license application is an act involving gambling where the application might never have even been granted but when now that is a radical expansion of federal criminal authority  and the nd you just combine two different points in one sentence you said that you'd be the st one to say that lying on a application for a concede gambling license we're wasn't certain that you were going to get a license would be a radical departure so suppose we took away for nd the likelihood of getting the license and we just focused on line on the casino application you think that would be a radical departure to say that it's a rico problem for to to apply rico to an enterprise that is lying about its ties to organized crime to get casino licenses well i think the whole of that rico what apply in would be to say that in cleveland the united states is only mistake was reading a rico credit rating wire fraud to read the predicate as opposed to the trap the realities are in that is the reality is that in any license application you're going to use interstate commerce interstate wires interstate mails and you know i thought cleveland was about crockery the traffic doesn't have a property of the travel just piggybacks on some other thing right that's true but if you look at cleveland's animating concern i think this is true in burrell as well in concerned was considering property and i think it's actually so in cleveland supreme court says that  congress needs to speak clearly before we reach better all statutes and the word it wasn't clear that there was property and if your is if what is unclear here is involving gambling i think it's the thank you just as barry just addressing your question about proximate cause in the supreme court case a bridge it involved a fraudulent representations property the application doesn't get granted because there's no place to put the casino then you don't get to see no license these were totally informed it's rock it show in the way the application process proceeded they had it that both the no because they know that the operator of their case the operator that's time it's not as if you could be a standing approved lease holder for some other operator besides you would have to find another operator to put in a new application and there's no allegation that you had any prospect of doing that in your complaint we don't allege that