twist here the court initially said well the disparate impact has to be proven within the limitations period when the city attempted endeavored even under protest to do so and did produce that kind of evidence the court then said well you have to show that these particular loans are inherently discriminatory so that goes back to the question you and i were talking about earlier your honor where does an f h a loan is it inherently discriminatory we say that's the wrong question we say again that if if you get an f h a loan when you qualify for a more favorable loan and those more favorable loans are more frequently given out to non minority borrowers there is discrimination and so that is the conduct that continued that is the conduct that occurred within the limitations period and therefore the again the continuing violation of analysis apply see focus a little bit more closely on the policy practice think less so only because the focus was on the specific nature of the loan the characteristics of the loan itself but still it goes back you still have to link brief and looked at the underlined motions for summary judgment of you there were three things that were identified the monitor failure to monitor that makes no sense to me as for you can say that's the policy they're not monitoring i don't know how that relates to a causal connection you can explain it to me but i think it's pretty hard incentive of the loan agents to promote these long because the loan values higher and therefore their commissions i  find that that that practice is across the board all f h a loans and then the third one was the marketing materials marketing material just right and that's it that how do those policies cause where's the evidence but outside the context of the summary judgment in these cases there is a burden shifting analysis what you do is you come up with plausible policies that show that there were reasons why this could have occurred even if it was not intended to be racially discriminatory in nature the business then gets to respond with a legitimate business purpose for that and then the plaintiffs respond to that with the alternative means on which that business purpose could be accomplished how does that work here well it doesn't work in summary judgment and so therefore that's why we think that this was the wrong of the summary judgment stage and and so therefore this is again trying to prove your entire case within the summary judgment motion of whether you've met the statute of limitations we're supposed to only measure that the fact that there was a discriminatory conduct which we were able to show the conduct similar to that which went into our analysis of the pre limitations period continue to occur that statistically valid with ninety nine percent confidence level by our expert disparate impact occurred in that period and that should be enough to get us to the next stage of this case remember it is their motion for summary judgment and they have the burden were the non movement and all all well commissions that's that's the way it works and it's a traditional way for the banks to toward loan officers except that that put a premium on putting people into these f h a or v a loan for the high interest loans because had a thousand loan seekers all of whom were caucasian and the same thing occurred it would be but it would but then there would be no disparate impact and so here's the thing we said and and the evidence that we put in or complaint from the confidential witnesses which was and were budded indicated that there was a premium put and an incentive put on the fact that as a incentive communities mentioned stereotypes of thinking that you could get away with this more frequently with minorities and first time home buyers and that indeed this resulted in a disparate impact there was nothing that said that this was not true except the one thing that the court hung on to was that there was one hundred sixty seven thousand dollar greater value in for vention loans typically the net but that was comparing apples and oranges you were comparing the loans that were being applied for within the class of people that we were comparing they were applying for loans for the same exact value homeless they were applying for loans that were not measured by the average across the entire loan population is not forward with proof of that then we would have a counter proof issue to deal with but there was no proof of that and the fact of the matter is what the people come in typically for is for the best value whatsoever now the court also said that there are certain benefits to f h a loans but there was no evidence that those offsetting benefits were sufficient to counter the fact that these were more expensive risk your loans more likely to result in foreclosure which again is part of our expert opinion are riskier than conventional no but when when you qualify for a better loan and you've gotten more expensive loan then there is a greater likelihood of of ending up in foreclosure and that was the testimony of forest expert about it and by your failure to do something about it even after being notified of it you've adopted a policy of basically turning a blind eye to the disparate impact and that we thought was a sufficient policy also on top of others when in combination to lead to these disparities but that is your contention is that that was the disparate causes continuation of the material how does that cause discriminatory as well three again where where you are encouraged to put a premium on these loans which are also going to result in greater financial incentive to you because the marketing materials tell you this is the right loan and someone says well you know you've indicated that we can get a better loan to buy or first home and and and they said well you know these  put you in f h a loans without the value weighting fully as you might have with a known minority the other options that are available to you that is what the problem is and that's the discriminatory conduct that leads to just been impacted of course the disparate impact is considered an inference of intentional discrimination as well and so the idea that we've abandoned intentional discrimination as part of our claim just is wrong because we did show that there is a disparate impact sufficient to create that inference that was an rebutted so if i may i'll leave the rest of my time for a bottle time he issued a summary judgment but the briefing didn't focus on where the brief focused on the same argue the same standard that lanny really yeah so let me tell you what they did so into before the district court their argument was that the when they proposed summary judgment their argument was that the f h a loan program was just advantageous to minorities is advantageous to minorities categorically disadvantageous to minorities when they argued that and that's in the record s c r one seventy five when they argued before the district court the district court expressed concern about that contention is the f h a program categorically not on the motion to dismiss or on the motion for a motion for summary judgment their opposition to the motion for summary judgment and at oral argument the district judge asked the city's lawyer are you saying that an f h a loan is also a predatory loan the response of the city's lawyer was under these circumstances that's what we're saying so the contention was that an f h a loan is categorically adverse to minorities and since minorities are more likely to get an f h a loan which no one disputes the federal government doesn't dispute that this program is particularly benefited this isn't even appropriate for a disparate impact analysis the supreme court has said in inclusive communities that disparate impact analysis has to show an adverse impact not just an impact but an impact that's adverse so the city only can get to this by saying every loan that every minority borrower got into the f h a program is adverse that's that's just absurd in there's no there's no proof and now they've changed here and it's interesting when they came before you and they filed their brief they said it page thirteen of their br it has never been the city's position that have a loans were inherently predatory with that contract that was contradicted by what they told the district court they they didn't they say it was never the city's position that f h a loans were verse to minorities well that's contradicted by the  beginning of their opposition to the summary judgment motion and they say in the end that they say now for the first time that for many borrowers the f h a loan serves an important purpose so that contradicts their theory before the district court that this loan product which dates back to the new deal and has provided home ownership opportunities for loan moderate income borrowers throughout the country it's predatory so we're in summary judgment so let's let's talk about what's in this record what do these loans look like and how could they be considered to be predatory or do they fit in the category that the city now says for many borrowers the f h a loan serves a valuable purpose there are four hundred fifty three in this record i can see i can summarize it i think rather cynically there were four hundred fifty three minority borrowers that received an f h a loan to purchase a home four hundred fourteen of those borrowers made a down payment of less than five percent the city stipulates that borrowers who make a down payment of less than five percent are not eligible for a conventional loan so what happens with these borrowers should they get known at all that seems to be the city's theory that we as were if we're looking at home r home purchase loans that leaves only thirty nine borrowers that got an f h a loan to purchase a home and put down more than five percent of the record evidence focuses on the eight hundred of those borrowers eighteen to thirty nine who made the largest down payments in that record which is undisputed shows that sixteen of those eighteen did not qualify for the conventional loan because of reasons other than the down payment requirement in the two remaining borrowers in that is in the record it s e r one sixty five to seventy three the two remaining borrowers the evidence shows its unrebutted that again at one sixty five to seventy three that the two remaining borrowers who put down more than five down more than five percent received more favorable pricing with the f h a loan than the conventional loan that's it that's all the home purchasers the other category of borrowers received a refinance  under the f t f h a program the great majority of those received a refinancing under the f h a streamline refinancing program which provides an opportunity for borrowers to finance into a new get is is for example of at least a five percent reduction in their monthly mortgage payment the in that again is in the record at sixty s c r sixty four the standards for the streamlined refinance before you now they're saying for many borrowers the f h a program provides a good loan i submit to you i take it from you are the facts you just described were brought to the attention of senior officials of the they would have a hard time they all of us disparaging minority voters sure that's would it the failure to monitor if they did monitor which they did the department of justice consent decree by the way it's in the record describes wells fargo's moderate fair lending policy minor monitoring is comprehensive comprehensive in the government or the city didn't introduce a shred of evidence as to what the monitoring policy was they allege it's inadequate but there no evidence even as to what the monetary policy is so they didn't provide any evidence on the monetary policy they didn't dispute any of these loans and i've described to you every f h a loan that's in this record all that were made during this two year period there's nothing harmful to the b who got these loans but even if you even if there were an issue with his physical disability which it isn't so it's not appropriate to use disparate impact at all and that's the sole horse they rode into this courtroom that's it so it ends there but if you were to look at the a program the city suggests it's a disadvantage of the f h a program somehow makes it predatory or makes it adverse but you know the coop unities case said that policies that can be subject to challenge are only those policies that are artificial arbitrary and unnecessary that's the language of the supreme court this compensation policy is specifically approved by the federal reserve board as a valid measure of compensating loan officers that's in the record at r e one seventy five r e one seventy one to one seventy five that apply when a justice consent decree which was designed to make sure there is no discrimination in lending specifically authorizes this method of loan of loan officer compensation that's in the record it s e r four sixty five there's there's as you said judge hawkins there's no reason to think that this policy would somehow cause minorities to get f h a loans and not whites to get f h a loans but probably the real dagger to the city is this is just their contention that this caused it there's not a shred of evidence none there didn't put any evidence in the record that said any borrower got an f h a loan because of this policy of a loan officer compensation and i would also note that the loan officer compensation policy has no relevance at all to all the refinance loans in this records all those beneficial refinance loans where borrowers reduce their monthly payment by at least five percent because of this loan that policy has now left the boat it all has no down payment out of refinance them and the policy has no application to the to the what the city calls high cost loans which is offensive in itself there's no the government doesn't call these loans high cost the city changed its definition of high cost when they found out they didn't have any under their original definition there's only a handful left that the that the city even the city's expert calls negligible but the policy they say caused this that is the loan officer compensation policy has no applicability to this loan officers are the what they call the high cost alone is based on the interest rate of the loan does that exceed the annual prime offer rate by a certain amount the high cost loan higher price loans or correctly called under the home mortgage disclosure act or based on the interest rate of the loan how does that deviate so the compensation policy can't cause that loan officers are not paid not paid based on the interest rate of the loan if that's it essie to seventy two it's not disputed the department of justice consent decree doesn't permit that the federal reserve board loan officer compensation policies do not permit that there's no evidence in this record that any one officer was paid based on the interest rate of the loan so that's it that's it that's all they have there's no evidence here of any violation of the fair housing act with none none that disparate impact is an applicable to a case like this in they fail it miserably now we view we have a little different view than you describe just by as in your questioning about the application to just what i now understand i understand i'd like to address it we have contended that the continuing violation theory as described by the supreme court in david's and morgan has no challenging that the class period generally is defined as those who are subject to the policy during the limitation period but let me that any application of the continuing violation doctrine requires a violation within the limitations period ever no case a hostile work that's right this isn't a hostile work environment case i again i would say to you true because i don't think this is really relevant to the issue now but the district central district of los angeles of california has decision in kimbra vs fremont we think provides the proper application of morgan havens in the lending context and i refer you to that but but there's and this record there is simply it in another way to look at this on the policy issue as justice kennedy focused on the fact disparate impact case the remedy should focus on elimination of the offending practice and you know that has a lot of logic because if the if the practice caused the disparities it's logical to assume that if you go in the practice you'll in the disparities but there's it's just not even reasonable to contend that if loan officers weren't paid on a commission basis that the racial composition of the f h a lending pool would change let me close by saying i mean we there's been a lot talked about in this case the city has has emphasized the importance of the fair housing act and you know i in our client certainly agree with that this is a landmark civil rights law it marches in lockstep with the sixty four civil rights act with its many titles  from you thank you ron my friend started out by saying that the city changed its theory but if you look at even paragraph one of the original complaint the theory is the same these are on equal terms being offered between minority non minority bars he also talked about how the city's council a trial made the categorical statement about ha but in his quotation from that record he started out with the words under the circumstances under these circumstances referred to the context and the viability of an f h a loan when and another more favorable loan was available to that kind of category of credit worthy and but again he urges this court to look at these loans the f h a loans in isolation not he says you know look at whether this particular recipient of an f h a loan was essentially tied to some compensation scheme for a particular loan officer that's not how we examine desperate impact we look at the statistical disparities and that's what the court received below our expert disputed the fact that there were lower interest rates which the bank claimed was true for f h a loans he showed that there was a higher likelihood of receiving these loans and that these loans that he identified as being within the body of analysis for purposes of disparate impact were of the same kind as the pre statute of limitation loans that he had identified for his original analysis that went to the clients so therefore all of these joined the issue the issue was not that there was no evidence there was significant evidence but the court did not seem to care about that evidence because again it kept changing what the focus was for purposes of deciding whether or not we have fit ourselves within the statue limitations the fact of the matter is the claims that we made were consistent for both during the prelim period and the postal protection period as long as we identify a single occurrence of the same behavior than then we are within the statute of limitations now you know again my friend talks about individual loans examining those loans but the individual loans are not just tory conduct for which the city is aggrieved the injury in fact that the city receives comes from a cluster of these things happening it is the injury to the community that the court recognise them trafficante gladstone in haven's that essentially all the city to bring this kind of an action and that injury continues when the conduct of the bank continues in that fashion so we split that we have we have challenged all the evidence that they had put forth that the burden was on them but there are triable issues of fact that remain at the city ought to have its day in court thank you