are controlled persons and we follow the appeal say of the questions of fact exist and so in the opening i think it's very important for the court to understand for a centrally alternately contested but for purposes of the summary judgment that is uncontested not the reason why that's important as the court is aware based upon the head case one of the issues that  is controlled person lob l t is the ability to control the violation in this particular case we argue that it's undisclosed the fifty million dollars benefit that they  fifty million dollars benefit our nd undisputed fact that the nd one is the millennium ownership stocker of all the voting shares of leverage and essential it comes up as the documents and the control in wa to say that the articles state that the voting shareholders can't hold a meeting without notice based on a written consent and whatever motion they adopt the comes up ective a mediately in the corporate world that provision in and of itself indicates substantial ability to control the direction of the company and so this determination was based on professor spender who is university of texas securities professor and he was the one that had rendered the opinion in the analysis that they clearly had the right without notice or to adopt a written consent we reached this time just going to cause your time's ticking away if we reach this issue in my right that certainly theory do turn on whether ability to control is sufficient and as you know i was in the head on heck panel so but but would you agree then that those three points ar factual disputes as to actual control so it really it does it all come down to that legal question well i agree the legal questions exactly what you just said it's the bellotti to control other words if you have control and don't would disagree with that and in heck i thought we sort of dodged deciding that in you'll know the footnote number whatever footnote was right but but the but the question that you pose is the central issue in the case the ability to control  words an exercise whether an exercise control would give rise to control personal built in so in a hypothetical less assume you only in congo is that a passive owner shareowner is somehow directing in controlling activities that may be wrong they may just have passive ownership that how is that control as contemplated by the louisiana statute of calls you have the ability to exercise like control now let's say that you had no relationship to the transaction you know there i read our law saying you don't have to be a participant other circuits would say participation is necessary and then at the other end auditors are going to be exposed and so there's this nebulous middle and and the district court was of the viewpoint there has to be in dishes it can't just be a relationship a passive relationship ha be connected to these transactions and i guess i'll ask you if that happens to be the law do you have evidence of that well that they  in the bol asian and so the question that you're that you're asking does is only fifty million dollars dollars and just assume that they got fifty million dollars and for purposes of what we're talking about today that's the way it comes up on  summary judgment calls it in contested if they solicit investors for leverage no but so the question that comes up is well they have a duty to disclose the benefit that they were receiving from without even calling a meeting they can replace directors increase the board and and couldn't exercise that right so assuming that they knew that they were getting fifty million dollars and then it was not disclosed and  if they had known it was not in compliance with stylish and i'm asking you is there any other circuit that would expand control to a person get federal law the way you're urging or is hecht are we the l well no i think the better way to say it is watch the act and in our situation under the the  enron has always been based on the rationale of this isn't specially birches pending rockey the rationale behind control person law is that a control person is in a position the ability to do it is one thing has there been is there anything in the record today that prove it likes to approve of the transaction the non voting shares that the record if we show it shows the best but not performing so what did sicko do to go out and out of pharma to step aside i think the question you're asking make what a problem to step the day by about one hundred and thirty million dollars and yet they didn't do anything in the offering memorandum to state that they knew that the assets were missed by you're about to run out of time i want to give you a days and we were under a lot of pressure to be the go to trial on the remaining defendants are to dismiss the and so we dismissed without prejudice that the lady that had originally the reason why we don't have a problem is is that they exist in law that is dismissed that the dismissal has to be of the remaining climbs in the words if you look at all the cases where this has been applied and and i think the dissent talks about it would be a new case but as a practical matter is ten years and and prescribe and as i said we never served or in the in the lawsuit so we find we don't have jurisdiction does the district court have jurisdiction if we wanted to go ahead and uphill the sitka so if you look at the record you'll see that we asked the judge for a fifty four plea gets what she wouldn't grant it so if the law is as suggested by judge ho that the total we're not there now i hope that the embalmed decision of the to circuit recognizes than equity of the situation the reality is is that the court system was an emergency meltdown bernie january when we were forced to go to trial this case  retraining pressure for us not to clog the docket and we did what i think was our professional duty to get these cases dismissed particularly when going to be with solvent people and we did that and i think we did a good job of that and i think on the nd one that would be it would be a dismissal and then if it wasn't settled within sixty days you could come back under section two request under sixty b to have the judgment and the appeal should be dismissed on that ground so that the plaintiffs can go back to the district court and do so i'm happy to start with that issue and very briefly address it before i turn to the merits doctors are saying that you can't go back on track they're saying they can't go back i would could go back to the district court and obtain a rule fifty four b determination it is true as mr price says that there are no why of claims remaining in the district court at this point but i think it would be appropriate under this court's ryan line of cases for the district court to enter a rule fifty four b determination namely a determination that there is no just cause for delay for the appeal to go forward the problem here is that plaintiffs were not able to obtain such a rule fifty four dollars b determination and did not seek such a determination even after the claims as the remaining defendants were resolved which is to say that there was a judgment entered and then an amended judgment in i think february of last year but there were still the proceedings on the default judgment against mr fletcher and then another judgment was entered and that was really the point at which the district court should have entered a fifty four b determination under the reasoning of this court's ryan line of cases so we certainly think that the district court could go ahead and do that now of course this court currently has the n b a proceedings before it in the williams case i think the facts of the williams case are somewhat different because at the relevant time in the way i'm scase there really weren't no other defendants remaining and as you may be aware in the williams case the judgment that the district court entered in the subsequent proceedings was kind of a weird judgment it was a real fifty four b determination in which the district court attempted to convert a dismissal without prejudice into a whistle with prejudice and i think in the end bank proceedings the court will presumably be considering the question of whether or not a district court can do that we do think that the district court could fix this but that under the ryan line of cases it needs to be fixed because you have the same concern about the prospect of piecemeal appeals that motivates the whole ryan line of cases in other words you have the risk that with a voluntary dismissal that the plaintiffs could bring those claims back to life and therefore essentially circumvent the requirements  fifty but to question there's no suggestion in this record they did it with and there's no such suggestion but of course this court's ryan test doesn't turn out intent unlike the tests of other circuits it's just a bright line rule that essentially says that when you have a voluntary dismissal in the wake of the ruling that you're seeking to challenge on appeal you know you can't circumvent fifty four dollars b by turning what would otherwise be a non final ruling into a final judgment that's the whole upshot of this court line of case so in terms of going back to district court are you saying that there are proceedings remaining in district court right now or that it's over but somehow the district court can reopen well i don't think that there's really anything to reopen because i think that the upshot of the ry they could potentially be a new case on the district court's docket now if there's a question about whether the district court can do that i would submit that the other thing that a district court could potentially do is use rule sixty ebay to essentially say this was  a mistake in the earlier judgment and i'm going to curate by entering a rule fifty four b but we do think that that that should be permitted and a lot of the same considerations at play in the williams case come into play here i think that it is very quick case is controlled by ryan i think so because at the time that all of this took place there were still other defendants in the case and i think that what plaintiffs need here is just a simple no just cause for delay determination from the district court and so i think that the williams case is in a somewhat different posture and you know i realize that the court could potentially revisit the ryan line of cases in williams and i suppose if the court in fact did that it would be appropriate for this court to hold its decision in this case just to make sure that it's turning square corners on the jurisdictional issue that doesn't look like a serious prospect in the williams case but i know that the parties are submitting their briefs for the end bank or it starting next week and so it may be prudent particular since the argument is next month for the court just to wait and of course the court will be aware of what's going on in the way i'm scase after that argument or position sensitive to this sort of our law here was that the original position you took once they know just for appeal or not well in once they are originally notice the appeal in our jurisdictional statement we pointed out the fact that the initial judgment was plainly premature and that it was the subsequent judgment that could potentially qualify as the final judgment of course this court then issued its panel opinion in williams not only reaffirming the ryan rule but saying a fair amount about what would subsequently take place and that is obviously what precipitated the court's requests for a supplemental briefing and we have i think set out our position in both of those briefs to the effect that we think that th something that could be cured if the court concludes that the subsequent judgment was in fact not a final judgment having been on the hectic yes why shouldn't that decision make me reluctant to construed louisiana co d i think there has been water under the bridge even since hack in that there is now i think a pretty robust body of case law on the federal level the for the proposition that actual control is  required we also of course rely on the solo case which was extended at the time of the panel's decision in hack for the proposition that of the ways in a courts also appear to require actual control i think that if actual control is in fact the standard under louisiana law as we believe that it is that this is a quite straightforward case and i don't really hear mr price in his argument to suggest otherwise but one thing i do want to just emphasize and highlight is which it seems in hindsight a little in congress for us to have said bill it easy and then in a footnote to say but it may also be actual i think it was just the court realizing that it had a relatively easy case on the facts before it and prudently deciding not to resolve definitively the question of the legal standard in light of that is if it were ability to control then full ownership of millennium would seem to at least create an issue that well i was just going to say though judge higginson that i think that even if you think that inability to control  that we should still prevail on this record i want to go to what i think is really the core of the three theories in plaintiff's brief that mr price exclusively focuses on today which is this theory of control through ownership now at the outset i think it bears emphasizing that this is a quite unusual and attenuated theory of control because the theory at issue is a theory that citgo group itself own millennium which itself held the voting shares in leverage and therefore that citgo group effectively exercise control through that two step theory of ownership now mr price and his argument focused on exclusively on the relationship between  millennium and leverage but where there is no evidence on this record therefore this court can be confident a ruling in our favor is on the relationship between the citgo group and millennia the sole piece of evidence in the record two now it is true that the district court in a passing statement referred to the notion that millennium is a wholly owned subsidiary of the citgo group but there is no support in the record for that proposition the district court made that statement very much in passing as part of a broader statement about how millennium own all of the voting shares in leverage and the district court cited a passage of plaintiff's brief that discussed only that relationship and so that's really the sole hook on which plaintiffs hang their hat in their brief for the notion that citgo group had a really and ship with millennium now i think it's also true that the relationship between millennium and leverage was not as simple as plaintiffs make out and notably the district court in its opinion refusing to grant summary judgment on the issue of that relationship pointed out that there was on this butin evidence in the record that millennium held the voting shares of leverage only for administrative convenience so as to take advantage of cayman islands law and in fact that leverage board of directors and of course pleasure asset management exercised actual control over all of the investment decisions but the court doesn't need to wade into any of that the straightest line to rule in our favor on the issue of control person liability is to say that even assuming that ability to control is sufficient and again we think that the law is sufficiently clear the court may want to just go ahead and say that actual control is required but if you don't want to do that you can just say that whatever the standard the evidence of the record here is insufficient because of the gap on that relationship between the sicko group and i think that the other two theor interrupt just because you want the hard questions once factual and once legal factually it did seem like the district judge here said there wasn't a relationship there was knowledge there was clearly interest to protect  all of that together factually plus the ability to control moves this far far away from just an auditor i don't think so which is to say that we have st of all i think it's important to realize that plaintiffs themselves articulate these theories of centrally three alternative theories of control person liability i think when it comes to the sicko group it is really a theory of ownership and yes they have their theory that there might have been a financial incentive but i don't think that goes to the question of either actual control or an ability to control i think that the theory is based on this attenuated theory of ownership through millennium there is also this we are really worried about a circuit split because this isn't her putting louisiana law correct so although it had we said it's thin we should look to federal law when you actually go back to look at the control person statute it does contemplate in direct why wouldn't that mean you could have a two step what i'm worried about is announcing a rule of law that allows people to structure a puppet to arrangement where you have an intermediate level that tomorrow in our favor ok and frankly federal law as well talks about indirect or direct control which i think just stands for the proposition that yes you can exercise control through an intermediary or rd person we certainly don't dispute that proposition my point was simply the more modest point that if even assuming argue rando that ownership is enough and i would know perfectly that there are plenty of cases that explain why that should not be the law because when you're a passive owner you have the right to actually employ others to actually control the relevant party is the best case the st circuit case aldridge i think that's a case that has the best reasoning as to why th standard is the correct standard and louisiana cases do look to federal law and i think that federal law in its definition of control is materially indistinguishable there i but i interrupted you as i have a habit of doing what's the limiting principle so that companies cannot structure themselves to have a two step process hence never control liability i think under an actual control standard you look to the activities of the defendant to determine whether they actually exercise a sufficient amount of control over the primary violator which they can do through an intermediary and again here there is no evidence whatsoever of that either with regard to the citgo group or with regard to the citgo affiliates i mention the two other theories on which plaintiffs rely those are the theories involving sicko banking and citgo fund services those theories really are theories of but for causation they really are theories that if those entities which extended alone and which provided administrative services had acted differently they could have been mr prices words been in a position to prevent the violation and we know that that is not sufficient i think even if you had an ability to control standard that standard should not go so far as to be bought for causation i'm not aware of any cases that say that that is true i think the solo case effectively rejects that proposition and that's of course a decision of the louisiana court of appeal but i think it's a decision that this court sided with approval in the headcase and so i think that those theories as to the citgo affiliates plainly fail even under inability to control standard because again those are essentially bought for  the voting shares in millennium there's no evidence of that whatsoever in this record all right you're not saying that they don't have it it's just that the evidence for a record is there's no evidence and i'm not aware of any such ownership relationship there's no it bears underscoring the judge dick did not say that the legal standard in the wake of hack is actual control and that's the only basis on which he was granting summary judgment she certainly did point out the absence of any evidence of actual control seem to want to sufficiently significant relationship though where does she repeatedly use the word significant where was that from i think that's just implicit in actual control i think it's implicit in both actual control and an ability to control which is to say again that even if it's an ability to control standard i think that but for causation is insufficient i think that you have to have a closer degree of nexus or at least a greater degree of power potentially to control or ship of all the voting shares would be enough under that standard right under your standard i'm not sure that it would necessarily be enough you know in other words if you had evidence as we do with regard to the millennium leverage part of this that the ownership of the shares was only for administrative convenience i'm not sure that that would be sufficient but again here because we have the breakdown between the citgo group and millennium i don't think the court needs to wade into those issues and sort of encyclopedic where you categorize the contours of the stand now i do think that and i really still question i was asked it sounds like you believe you have an evidentiary defense no matter what the legal standard is but i am curious just ask is your world in which you would make sense to certify this question to louisiana supreme court i don't think that there's any reason to believe that the louisiana supreme court would adopt an ability to control standard because there is no footing for that in louisiana law and plaintiff stonehouse court i think and to turn in my last three and a half minutes of this i think what inquiry notice occurred outside the two year period if you think we can theoretically reach that issue ourselves we don't need this on the back the court can absolutely reach that issue itself indeed in the earlier grant for an appeal in this litigation of which judge wiener was on the panel this core reached that as an alternative ground even though the district court had dismissed those claims without prejudice and converted it into a dismissal with prejudice because the arguments concerning the limitations period for what connected citgo to and eleven correct so what if any prior to that gave them notice that they might have a cause of action against your client as opposed to leverage the louisiana law it is clear that that nexus to the particular defendant is not leveraged the primary violator engaged in a violation of the louisiana securities act the sole other question is who can be an eligible defendant and on that issue we would point the court to among other cases the patent case which says that the failure on the part of a pla to ascertain whom to sue within a year does not toll the running of prescription and that the plaintiff must exercise reasonable diligence to it your argument also is to the extent there persuasive on control person liability stock ownership being sufficient to so th control then any plaintiff would know that their want to be their alter egos well and that was the upshot of judge dick's reasoning in granting summary judgment on the other claims on the basis of his that is that is that analysis correct well i think it could be correct if you thought that there needed to be some basis for knowing that the sicko defendants were potential defendants and indeed of course it bears emphasizing that the offering documents themselves disclose the services that citgo was actually performing namely that you know the citgo that is it no entity was acting as the administrator that sicko funds services might even have a conflict of interest i thought that offering document even disclosed that they actually were full owners of millennium no no it there was a disclosure that sicko was an investor at r o a three dollars to one dollar to two dollars but of course you know we don't think that there is any evidence in the offering documents or elsewhere undisputably correct statement the ne m owned all of the voting shares of leverage and again the support that the district court cited was for that proposition and the question for this court is whether there is any evidence in the record for that and last thing i would just say because i claims in federal law that was articulated by the supreme court in the merck case interpret ing specific statutory language and all that is required again is a reasonable basis for the claim and the plaintiffs here make no argument that they made any rampant misconduct at fletcher asset management or the parodic matic types of events that constitute storm warnings for purposes of inquiry notice and so that i think if the court has any concern about the control question and the exact contours of the law boyd control personal liability by just putting it into all the omes that's never been the law all as far back as the thirty four act was adopted and really what that  what the thirty four act deals with the setting up dummy in a tease to exercise control if you look at the whole lot of cases from enron your decision in heck was in the st one that you deal with can that control could be he says he explains exactly why it has to be controlled by an offshore entity when i asked the question so the suggestion that that citgo group when all the people that acted on behalf of millennium watch it it's all issues and we outline it in detail the action these people are taking the olympic her prescription if she don't mind the question is when do we have knowledge of the c ridges networks actually wind up on the restudy not an adverse change when they sent out a statement and all of us they said don't worry about it it's a minor adjustment so say these are all within the two but you have a two year prescriptive period here i think tomorrow case does a great job of explaining much better than i could do why it's not in the inquiry date but the date that you have knowledge of all of the elements of the cause of action knowledge as to leverage in your separate argument is that leverage it was publicly known that its own millennium and and said go why would you have all the elements of the cause of action case look we've got to have a special rule for concealment or for all this is a concealment of fraud case where they took fifty billion dollars of our money and both mark and that s