first i want to express my appreciation we had because of some logistical problems we had to move the scheduling several times i know how frustrating that is to get a call one day or on monday when they are on tuesday nobody complained and i appreciate your actually the court has allocated fifteen minutes for each of the three appellants my plan is to use ten minutes of my fifteen minutes with my opening and then reserve five minutes for a reply after mr swift has completed his argument that afternoon as i indicated i represent aroma and philippine national bank two of the balance in this case aroma is the panamanian corporation which was incorporated in panama in one nine hundred seventy two in which opened in its name the account at merrill time that merrill lynch filed the inner pleader in two thousand and two our position as a rama is that the account is owned by aroma and that the assets that are the subject of the inner pleader should have been awarded to client which has held those shares certificates in escrow since prior to the time that this proceeding or player proceeding was filed and they are holding their share certificates pursuant to an agreement which ownership of those assets as between the republic of the philippines on the one hand or the marcos the state on the other hand and which is the judgment debtor of mr smith's clients so in any event we participated in the court below because were named as defendants in claimants we asserted the claim on behalf of our realm as owner of the fines we've sought reversal of the judgment on a number of different grounds and i certainly want to time to discuss all of them but they basically fall in the national bank and that result would follow on several alternative grounds that we argued one being that him and tell the party who prevailed on behalf of the class of judgment creditor's was not a real party in interest that he did not have standing to assert a claim to the iranian assets because as an unsecured judgment creditor of the markets the state he or the class a judgment creditors did not have any specific property interest or leanin any of those assets and therefore were not a proper claimant to the inner pleated fund they were an unsecured creditor of the marcus estate at best even assuming that one were to conclude that the assets were at one time owned by marcos his the state but that was never established before the case was filed in by virtue of attempting to establish that and arguably establishing that although we disagree that the evidence supported that conclusion establishing in the case interest in any of the assets it was going to get an interest it would have had to have probably garnished merrill lynch with a writ of execution based on its judgment that never happened so we don't think that intel had the standing to make the  secondly there is the overarching issue about whether or not the evidence supported a judgment awarding the assets to tell on behalf of the class and as you can see from our brief there were a number of issues that we've raised on appeal on that particular question some of them are legal issues some of them argue that the findings of fact by the district court were clearly erroneous because they were not based on any evidence or at least not sufficient evidence to support findings because there were errors in admitting evidence and conclusions and findings that were based on no evidence at all one of the the overarching to be applied to determine any alter ego claim in this case because panama or because aroma was incorporated in panama it was always a panamanian corporation it was in good standing at all times the district court even found that aro before trial we are going to have that panamanian law expert testify at trial intel made a motion in limine me to exclude any expert witnesses on foreign law and to exclude the reports  the district court granted that motion at the request of him intel so we in the other parties were precluded from do seeing any evidence of foreign law other than through what the district court allowed he said that all i want to see is copies of any request as a request for additional notice but in some form it was put before the district court different panamanian statutes and cases which we said stood for the proposition that panamanian law does not recognize the alter ego out doctrine except in criminal cases and i think our showing was sufficient to show that albeit somewhat incomplete because it would have been helpful i think to have an expert explain the cases in the line and flesh it out a little bit those cases and statutes are also part of the record here and although i guess mr swift with argue how the panamanian law should we should be interpreted i think even he has said in his brief that it appears that panamanian law is that alter ego is generally not recognized in civil litigation and would only be recognized either in a criminal case or possibly where there's a theft of a property from the panamanian government so it's our view that if a proper trace of law analysis was made it would have led to the application of panamanian law which would have rendered it legally impossible for him intel to have successfully asserted his alter ego claim in our grief we went through a fairly lengthy analysis of the price of life issue basically since the case was valued in the district of hawaii we said that hawaii choice of law rule should be applied that under hawaii law there are no reported cases that anybody could find that says claims or alter ego basically where someone is a corporate creditors trying to pierce the corporate veil to unfasten liability on an individual this case is the reverse of that reverse all three go where someone is trying to  i also wanted to briefly touch on the subject matter jurisdiction issue because i think that's an important one if that were grounds for reversal it would i think have to result in a dismissal of the case i think it's a good argument on a couple grounds this is an inner clear the general rule is subject matter jurisdiction is determined at the time an action was filed and in inner pleaders there can be no subject matter jurisdiction unless the asset is located within the district in which the inner pleader is filed here that was not the case the inner pleader was filed in hawaii at the time it was filed the around assets were still with merrill lynch in new york it was only because the district court ordered mailings to file the inner pleader in hawaii that it ended up there in the first place which is really an attempt to manufacture subject matter jurisdiction the assets arrive later but that was insufficient to allow the subject matter jurisdiction to be established at that point i think i've used up ten minutes i wanted to reserve five more if you have a court my name is stephen ramsay and i appear here today on behalf of the republic of the philippines and its presidential commission on good government the issue presented by this particular appeal by the republic answer to that question is no and that as a result the judgment below was erroneous as a matter of law the case instead needs to be dismissed for lack of an indispensable party under rule nineteen b now and then a month later proceeded to hold a hearing on a motion brought by mr pim intel to determine the question of indispensability and the court ruled that in fact the republican p c g g were not indispensable it is that determination if it is not the case that a party which is im one in which planes of all parties are determined with finality if that cannot occur or more particularly if the wife's a party claiming immunity can be determined eversley to it in it the ability to assert immunity as we say house no meaning whatsoever and we believe that that is not only require a determination made many times over by this court in cases th in the jurisdiction which is holding the asset and that would require them to in effect waive their salary immunity but it's their decision by pursuing the ensign what you're setting out for the court would be the rule that not only are the will to to state their claim to the assets but they also can require someone to go to their jurisdiction in order to pursue that claim well in fact one can envision a case in which that would exist and i believe again that the precedents of this court mostly in cases involving indian tribes rather clearly stand for the proposition that even where there is no alternative form let alone a forum that the sovereign has chosen less the interest in recognizing sovereign immunity as a matter of law must be acknowledged however here we don't actually even reach that difficult position because in fact what would happen if this matter is dismissed here as we believe it needs to be is that litigation in the philippines over the aroma assets will proceed to a conclusion motion for summary judgment has been filed and fully briefed be disposed of in accordance with whenever the philippine courts get to it when that matter is finally resolved one of two paths will have been determined one either it will have been determined that the assets along for the republic of the understand that in some waves what we are saying here is that we have the ability as a foreign sovereign to influence the course of american judicial proceedings in the same way that i believe americans would expect that certainly the united states government would expect that i think we're going to be held in to a foreign court that it would be able to assert its immunity this is of this is a principle of really quite great international importance and th application of it here is rather routine as i say this court has again and again dismissed cases under rule nineteen be in very analogous circumstances the flame as i say to do that here the notion that the particular claim that is at stake here is a claim that is rather neatly governmental and uniquely local and politically important in the philippines that is the attempt to get back the money which former president marc was misappropriated while he was in office and here i have to call the court's attention and we've submitted a letter on this to it to a subsequent decision in the philippine national bank case decided just a month ago in in which this or wisest that is this is an effort by the philippine government to write the doings of its former president a matter that is obviously of the greatest political important philippines that we could not regard the united states as well as dealing with indian tribes and foreign governments in which the role that we were why i'm here has been applied but i would be surprised if there were a case which purported to adopt a different principle as assets it has thus far gotten a summary judgment as to a number of the decision by the philippine supreme court within the last couple of years did not by its terms specifically apply to all roma therefore the government has gone back to the family combined which is the and i corruption court in the philippines has filed a motion for summary judgment i believe the papers were before you i have them here if you would need to see them  deal with around that that has been pending for now i believe or approximately a year and a half now and it is the courts there don't move as quickly as we would like to think sometimes  have this asset determined not to be its property our view is that the only circumstances in which rule nineteen the dismissal could possibly be justified is where there was a determination made that the interests of the philippines not be impaired in this case quite to the contrary the courts rule might be ruling judge rio's one thousand be ruling was made on the ground that the philippines do not don't party in interest which was the way in which the court previously tried to say the philippines have no claim you would have this ruling already made so that is not such a ground on which you could possibly documentation was typed by separate people the witness statements type would by start separate people but all of the documentation in it up with gouda misspelled on the same typewriter and just because of irony or something when  court has come forward with a decision which i think is determinative as to whether or not judge real had jurisdiction that's a case of marshall versus marshall which in late december but this came out december thirtieth that decision deals with the conflict between state and federal courts and jurisdiction related to matters of probate and if we look at what that decision says it is very clear that the federal court probate exception is strong it's wide and it's one which demonstrates that the court had no jurisdiction if we look at the record in this case we see the judge real determining first of all that this property this fund whatever it may be in the possession of the court is markos property if that's the case it belongs in the state  the marcos property but he went beyond that he went to the point of determining the merits of various claims against that property he also determine und i don't we don't know what's in that fund but that leaves us with the opportunity of opening a probate in hawaii in the state court system which under hawaii law is to creditors in an opportunity to come forward and present their claims and the probate court can determine whether or not the claim should or should not be honored and there is no problem with an act of state sovereign immunity indispensable parties you're invited to would ken you're not forced to attend and we have heard in this case this court what i heard in the lower courts is the allegation that the philippine government says the money was stolen from us but nowhere has the philippine government come forward with once until of evidence that this money or any other particular kind of money or property was stolen from the philippine government so at this point we have no proof nothing substantiating the claim of the quoting government that this was in fact their money i have tried and you are not just sitting in the litigation the philippines and iran i mean in which you are definitely not participating as a matter of choice and if we look at the school cases in switzerland they are required to follow up in government a point to transfer the funds which i had attached in switzerland to provide a method whereby claims could be presented to that one that was many years ago i think i can't remember but eight years ago there is still nothing done in the philippines to get this process started and i'm getting older and i don't expect to ever see it done based on  performance here so i would urge this court tourists misters action the the property is still in the united states of america subject to the jurisdiction of the probate court in honolulu and the problem can re their sovereign immunity act of state or some indispensable party argument is not a problem in pro they did not and could not crew that they have any interest in the fund established at merrill lynch without interest in that fund they can't recover and to this action further if the property is stolen and i offered a considerable amount of evidence that it was stolen and the present record without my evidence permits a strong influence that it was stolen because of the way it was handled and because a civil servant suddenly ends up with two million dollars in fees just after he steals a buddha some gold bars and some diamonds from my client who for a while was the philippine answer to indiana jones he took that property and i can make a temporal link between that property and the opening of the account with merrill lynch in new york and that some of that evidence was excluded but there is no evidence that marcus lawfully acquired that money stolen property to pay off its debts pieman tell class of human rights week terms are certainly entitled to be compensated but not from property stolen from somebody else and that's the problem that they face in addition to the problem that they have no interest in this particular fun of money we have an interest in the fun of money because i believe we can  that there was a connection between the theft and marcos becoming wealthy and the opening of the account and part of that reve such as exclusion of the deposition of mr buckley because of time constraints i'm not going to to do any more than saying that counsel waived the rules by deposition over again if he wished to mr buckley did not appear a trial is deposition was offered so it was a record which he was intimately familiar with and he asked every being the competent counsel that he has he asked every conceivable testimony given and other litigation where the motives of the questioner being written representing the marcos family was the same they want to show he didn't steal the i think point one other thing is we still have pending in the state court in hawaii in action for a constructive trust one of the solutions to this problem is s enter preterism equity a case court if it determines there is sufficient evidence to support it awarded the funds by imposing a constructive trust on them so that the at least some compensation for what was lost through the criminal acts of ferdinand marcos that in that moment in excess of our present judgment but this court kind of award the entire strong to us my clients because if you it isn't done marcos or his estate profits from his wrong and please the court my name is robert swift i'm of the philadelphia law firm comes within grasp and for some nineteen years i have represented nine thousand five hundred thirty nine victims of torture summary execution and disappearance in the philippines i don't think there's any judge on the ninth circuit that doesn't know about this case and know about the various permutations of its follow through it for the last ten years i have been engaged in trying to collect  this case began four and a half years ago when i obtained credible information that there was marcos money residing in in a realm account at merrill lynch in new york at that time i filed a lawsuit against merrill lynch merrill lynch didn't want to defend that lawsuit and because i had noticed depositions right away it was conference before judge real and judge real suggested that mention that after the inner pleader was filed the first thing the republican the philippines did was not to assert sovereign immunity the first thing it did was to move the recruits judge rio case that record makes findings which are entirely contrary to most of the allegations contained in the briefs of the balance now one of them each this panel has over the other judges who have heard this matter and i'm sure you know there have been almost a dozen appeals and mandamus is in this action alone your advantage is that you have the benefit so when you consider your opinion in this matter you have to decide what are the facts of record what can you rely on what and what you can't and i knew then and when i read the facts sections of the briefs of the realm and the submitted early on in the matter and which were later stricken by judge real why were they stricken they were stricken because the philippine government would provide no discovery to support those facts but they're still argued before you as if they were facts mr cathcart on behalf of golden buddha has spent probably five pages arguing from the positions which he didn't put in devon's now consider what his that it is was a trial he moved a couple documents into evidence  this is a person who initially had a forty billion dollars judgment it's been reduced by the hawaiian supreme court to nineteen million he has an extensive record in that case you have witnesses he the only evidence he offered other than a couple documents were depositions taken in the state court case and the testimony of someone that he now said was an expert we had no objections to him putting in evidence of mr buckley as a fact witness and we had gone through the deposition testimony all counsel had to designate what was appropriate and what was objectionable testimony mr cathcart ended up not offering it at all course he was going to testify as an expert witness except that i expressly for his deposition early on as a fact witness when he was listed as a fact witness and in early pretrial memorandum i never took his deposition as an expert moreover he never submitted an expert report now in this day and age after the supreme court's rulings on expert witnesses and all the decisions in the circuit on expert witnesses not to submit an expert report in support of your expert in a case involving millions and millions of dollars that you hope to obtain ice ice i submit is is not an appropriate thing to do and a district court judge is well within his reason to say i'm going to exclude any expert testimony of this witness seems to me that's fairly simple now his deposition testimony that had been proffered by mr cathcart was taken in his state court golden  without me present without my client's present without us knowing anything about it the hinge pin of his argument on the rule eight zero four is that the marcos where the predecessors in interest of my clients now i find that very difficult to take since ferdinand marcos was found the ultimate levy responsible for the torture summary execution in disappearance of my clients so judge real me go back and and really started the beginning there's been a good deal of briefing dealing with the issue of jurisdiction obviously and i think it's undisputed that there is jurisdiction under the statutory in or pleader section thirteen thirty five of title twenty eight because at least two of the parties are of diverse citizenship and there's more than five hundred dollars that issue there was an argument made that there can't be enter in or pleader because the inner pleader complaint was filed in advance of the assets being deposited that the assets here were expensive and as you know most stock is held not by brokerage as merrill lynch but by a custodian on wall street and the custodian doesn't necessarily create stock certificates it's just whenever a brokerage firm asked it if so it took a while to do so but there is case law in this circuit in others which holds that jurisdiction attaches or is perfected upon the filing of the assets and it seems to me that only makes sense because otherwise it would defeat the purposes of the inflator statute but beyond that there had been a motion by merrill lynch to amend its complaint and it seems to me at the point of that amendment all the assets were filed and that certainly jurisdiction was attached and protected at that point now we've also asserted that section six hundred fifty five of title twenty eight provides a separate basis for jurisdiction now if you were to read the briefs of the other question jurisdiction and it isn't as if the same congress passed all these laws by sixteen fifty five provides that separate basis for in ram jurisdiction statutory in or pleader i think it is better classified as white as i and a federal court within ram jurisdiction has authority to summon all parties before it who have any claim to the property and that is what happened there is a disagreement among counsel in the briefs as to whether statutory in or pleader is based upon the constitutional authority for diversity jurisdiction or the constitutional arising under jurisdiction jurisdiction but the statute when passed provided for a nationwide service of process i submit that that is not the case with regard to diversity jurisdiction provided under the united states constitution it's a bit of an esoteric argument now the realm a has asserted that there's no personal jurisdiction over it of course the nature of a realm was simply as we know now based on evidence it needed evidence of personal jurisdiction over a realm in the united states we don't actually have to prove jurisdiction simply limited to one state under this statute under the inner pleader statute or in ram  and it was asserted in mr ziglar as brief that we judge real never made findings as to personal jurisdiction of course it wasn't mentioned that judge real had already addressed that motion early on in the case as most judges do and nor was it mentioned that there were numerous findings of fact inclusions of all dealing specifically with jurisdiction and aromas assets in new york it was it's been a started that almost four billion dollars with interest i think it can be reasonably asserted that the claim of the class and payment tell what far exceed any assets of the marcos's and therefore we would have a claim as all mar assets unless it could be established that they had more than four billion dollars and i don't think anyone has asserted that but the fact remains that pem intel had filed  against the estate or against other parties having to do with the estate so long as it doesn't affect the probate this will not affect the probate  representatives has no longer has an interest in this case so i don't believe that the probate an exception could apply for any reason the republic has gone back to its reassertion and i forget how many appeals we've been through now in dealing with indispensable party jurisdiction or non jurisdiction on the rule nineteen that panel said well on one hand the philippines is a necessary party under rule nineteen a but on the other hand there is no alternative form now i think at some point the law of the case case no ruling well may i disagree with your honor ok i think you find on the face of the church pro that this is a democracy well i agree that your honor that they didn't decide it a panel of this court decided that the trial in this case could go forward they said they expressed we have before them judge reals findings with regard to whether or not the republican was an indispensable party and they specifically said that there had been no abuse of discretion by judge real which is the standard for review now i agree with you completely that in their october thirty one two thousand and two decision that they didn't make any determination as to indispensability under rule nineteen b i think we can all agree on that all right but they those pages on with much together with my motion to dismiss early on dealing with the standing of the republic and as you know there's been a recent decision holding on that is on december twenty eighth of complied with by the republicans and nonparty at this point it's not a normal appellant furthermore there is a supreme court decision that i think is overarching in terms of the decision on this and the name of the decision  now it's also a case and i would analogize a bit to the army versus mccarthy hearings i've got a piece of paper here and this says that we the philippines have a claim we're not going to tell you what that claim is but we've got this claim and it's an important claim and it's more important all than all the other claims now i will tell you this your honor i'm just an old trial lawyer and i do it by the book i gather evidence and i haven't gather not some of the usual suspects that you would think might simply or cuba might have tried to disrupt proceedings in the united states they have let the matter go through adjudication and  as i have told you before there can't be any rational adjudication the philippines and and this are voluntary was what was wrong when he told you that there's been a year and a half there's been a motion for summary judgment pending not the case fo days after judge real's decision a motion with file but let me take you back to actually the forfeiture case which was the big case the one that mr bobbsey told tried schroeder it's about to be decided that case mentioned the realm not just like it mentioned a lot of other things but there was no relief requested a screw around or no relief in one hundred twenty five page complaint we brought this to judge real's atte and said you know the philippine government supreme court simply isn't going to decide this matter because it's not in the adjudication and guess what a few days after judge real made is that it is ruling on its own vacating  makes a ruling on the trial of the merits and i guess they read about it in the newspaper and they file a motion with there's their court there it's actually the lower court that called the sand they can buy and asking for relief when what's happened while nothing their claim is it's a forfeiture case well of course that your case in the philippines is an interim proceeding they don't have the assets it can't be in ram if they don't have the that mr cathcart and i and our clients cannot be party to the proceedings in the philippines simply between the marcos's and the government that's not an acceptable solution that doesn't permit us to assert our rights and the philippine government at the same time you have to understand this strategically has over one hundred criminal cases pending against the markets this that's sufficient leverage to get them to do what they've done before which is basically get  them not put in any evidence so guess what the philippine government wins and that's what they're saying to you they want to win but they want to do it so repetitiously now interestingly enough and i know i've mentioned judge schroeder a number below saying that when a party makes a strategic decision it can all it has to accept the advantages and disadvantages of that now is not applied to libya and libyan banks i think it also applies to is in equity and good conscience and so it's dressed to the equitable side of the court and i submit those findings are substantial a lot was made to do in the briefs as to the statute of limitations and eyes real was wrong in asserting that the philippine government not a party whether its claim would be barred by the statute of limitations now the real statute of limitations that applies is the new york statute of limitations who is the philippine government going to sue they're going to sue merrill lynch under what statute is merrill that could merrill lynch be liable won't be a new york statute that's where they they did their work that's their would apply to what they did that statute has long expired government is somewhat confused the issue and said well under the philippine constitution of one thousand nine hundred seven that created or took away any statute of limitations on marcus was out of office in eighty six also marcos is dead and they can't bring any criminal proceeding against a deceased person so i submit that judge real was quite right on this record that while the philippine government has a potential claim and that's why it was a necessary party under nineteen any its claim is not impaired under nineteen  the claim for immunity as to the former the reference was to the supreme court case and that was what was in all the briefs that's what mr bond he said look the supreme court of the philippines is going to render a decision shortly on this by the way that  if they can resurrect it it was they waited till more than one year passed after the decision of the philippine supreme court now they make a motion for summary judgment in a matter which is final an executive ory and that's the exact wording that the philippine government has asserted as to its decision perhaps to be something ality there never was a claim for around in their original complaint when i know and i'm probably the only lawyer among the lawyers here who has ever gone through and searched the docket in the philippines i sat there and went through the entire file all the pleadings aroma is not being litigated over there it's in and all the time that the philippine government or philippine national bank could have submitted to the court some evidence of pleadings or something it's missing so that's why i say it's army versus mccarthy i have here something in my hands where is it your son in america elise we're supposed to give to the court and to judges now judge newman you seem to be troubled that maybe we're trampling on the rights of the foreign sovereign but i don't think that's then go home or more importantly go ahead and sue the markets you know there's nothing that stops them from suing the marcos's in the philippines marcus's have a lot of property over there which we're not allowed to touch because by the way the philippine courts won't recognize your judgment they won't recognize the judgment entered by this court until their case on the yes through is there's a there's a case pending in the united nations that i filed a complaint on last fall accusing the philippine government of violating the rights of the human rights victims because they won't even give us a decision we've been had a we were dismissed in the in the trial court because we didn't pay a of eight point four million dollars eight point four million dollars we filed a direct appeal to the philippine supreme court as of right hooping supreme court let's see it's now six years wouldn't say that because they've been abused by their own government but it's around to call them and by subsequent governments that have ignored their pleas for relief i'm a stell you i'm sure you i think you get some background on the lawyers i spend about one third of my time doing human rights work i don't just do it in the philippines i do it in europe i do it in style korea i do it in various places and assuming it's about forty million dollars that they did least get thirty five hundred each do you know how much that is in relation to their annual income i have no idea it's three and a half times their annual average annual income and that the annual income of these people because they're they are among the very poor you take a bread winner away from a family in a rural area and they have nothing and that's what many of these people were there's very few that really have have any money of any consequence next certainly never been able to pay costs or townsell things to anybody will that be meaningful is your question yes roy and the answer is it's a start and i happy about it now you know how much i got for slave laborers and when i settled with germany and austria sixty five hundred dollars each is that enough for slave labor now but that is that the holocaust cases are always held up as an example a shining example of what can be touch on some other subjects if i may but that also mention that under rule nineteen the there are four major considerations we've laid them out in our brief but certainly the most important is whether or not the claim of the philippines is impaired in some way the philippine government assuming that it has a viable claim can sue the markets just consume them in the philippines and get a judgment against them thinking collect on it the only question really is whether they can collect on the a collection and human rights cases were not but the philippine government has had many opportunities to put into into evidence the assets of the feel of the markets in the philippines they have and i happen to know what  particular address the conflict of laws issue and let me just touch on that ours we claim that the statutes on which jurisdiction is predicated are our arise under federal law and therefore the court appropriately applied federal common law and federal common law on the issue of alter ego is well understood and there was an important reason for that and that is the decision of the us supreme court in first which has the stamina law when it begins as a general matter and then talks further i don't think the supreme court was trying to limit that decision to cuba or a cuban corporation who was talking more generally and it and it made an important distinction between the internal and external law that applies to a corporation no u s court has ever applied the panamanian alter ego law and of course we don't really know quite what it is there isn't any decision that we've been able to find on point on the panamanian  long i think good decision to cite to you is the way the foods decision which was the first circuit decision applying new york law in connection with the panamanian corporation as to which the they all it did not apply to many in law and another issue that arose in connection with that is whether or not reverse piercing of the corporate veil is permitted and you know  d corporation in several ways and here's the corporate veil in several different ways for example there were two decisions of the swiss that rule supreme court the highest court in switzerland which said that realm of a simply an instrument ality of ferdinand marcos that decision was put in for the very limited purpose of that and we contend that based on fence of collateral estoppel realm we cannot now assert that point of contempt and only after the contempt citation had run up to three hundred thirty thousand dollars did he consent to giving a deposition what did he say it is deposition it's in the record it's in evidence here he said what that is usable in the case with regard to all parties and i don't think there's anything surprising about   where we've raised the issue as to whether a judicial decision can ever be the subject of an act of state but putting that to one side there's nothing in the philippines with regard to aro constitutes an act of state there's no decision by its courts how can there be an act of state furthermore it involves money assets that are in this country and all the seminal decisions by the u supreme court on at the state require that the act of state must meet with regard to matters in their own country or also doesn't apply i think i've covered all of the matters i want to cover i certainly talk for longer than i wanted to talk and unless you have any further questions i'll sit down ok thank thank you there is a lot of ground to cover and i don't have much time so i'll just try to hit what i think are some of the high points in response to mr swift's comments first of all i talked about the genesis of this case and i think that's important to keep in mind from the perspective of subject matter jurisdiction and also why my clients lost virtually every motion and had ever beast of evidence that we wanted  excluded mr switch clients had almost every piece of evidence that it wanted it made it into evidence and that's because this case didn't result from an agreement between merrill lynch and this year swift regarding the filing there  nothing in the record to support that what the record shows is that the trio issued an order in the late forty about a week or two before the center peter was filed summoning merrill lynch to come into his courtroom in los angeles and explain to seventeen and twenty four so i think that background indicates that the infirmity in the subject matter jurisdiction emanated not only from the fact that there was no race no asset in hawaii when the action was filed is requirement for a property owner pleader but also that the case began with an unauthorized order it real's order to merrill lynch to file an inner pleader in hawaii was not a proper exercise of his  smith's client's judgment and this court held that that was improper that federal courts are limited to use of a writ of execution to the enforcement of a judgment unless there are some extraordinary circumstances and there's nothing extraordinary about this case th ownership of the aroma shares and its assets our position is that there was no evidence properly admitted which would support the finding that marcos was the source of the two evidence that the source of the funds ever came from marcos moreover even if we assume that marcus was behind or all men that he was behind the two million dollars there is no evidence whatsoever that marcos or his estate ever used aroma for any improper purpose or that it was incorporated for an improper purpose there's nothing wrong with incorporating a company in a foreign harper in a foreign country establishing a brokerage account united states and putting money in it and letting it sit there for twenty years that's all that happened there was no evidence that any of those assets were ever used by marcos his family or any of his cronies the alter ego doctrine under any incarnation at least in the united states if you've screwed panama which doesn't recognize that any incarnation of the alter ego doctrine requires that for there to be a piercing of the corporate veil that the corporation was either incorporated for an improper purpose to commit a fraud or was misused by the incorporate  there's no evidence that that ever happened here well how about hiding it was ill gotten wealth there's no evidence that that was ill gotten wealth there's only evidence that the two million dollars that was deposited in the merrill lynch account came from an account  hole in the record even under new york law which the district court relied on in part there's a requirement that the corporation have committed some fraud or some wrongdoing at the instance of the shareholder which was a wrong represented by mr swift their judgments are not based on any financial transaction taking of assets or anything of the like while they certainly were abused by the marcos regime it was the nature of personal injuries and there was nothing to do with a realm that related to the wrongs that was inflicted upon mr swiss clients so i think if you look at the alter ego dr in the way it's supposed to be analyzed there's a problem with the application of it even if you assume all the underlying facts as mr smith would even if you assume those facts there's a problem with applying it to the situation we have here where there was a passive investment for twenty years in new york marcus has never saw one penny of that money by the time it was in or pleaded the share certificates of a realm or were already in the hands of the bank as escrow holder and the marcos family would have no right no ability to touch those assets in fact the evidence shows that nine hundred ninety seven imelda marcos called up said we're going to hold a directors meeting united states for all and we want you to follow whatever direction the director as that we point we want you to follow those directions in dealing with the account mr sunni took the position clearly and it's all in the record that that was an outlaw meeting that he did not recognize that that he did not consider this is marcus to be a representative entitle to direct the affairs of a realm so i think that if the equities are to be considered those things have to be taken into account also our position as a roman is that we are in the assets that they should be distributed to roma held by philippine national bank in the philippines in escrow to be  distributed according to a decision of a competent court of the philippines which is what the escrow agreement requires thank you very much philippine that a geisha it is true that at the time i argued before judge schroeder and her colleagues we expected that the philippine supreme court would resolve the aroma client but it turned out it didn't therefore after the matter  question the indispensable party ruling from which we appealed was a separate ruling made a month later there was a separate request made to certify that you'll find out i believe at page seventy sixty one of the record that was refused this court not only did not purport to go through the nineteen the analysis but it by definition could not without violating our property without bringing an action in the united states where the property is but that's but that's simply not correct proceedings which originally began in the philippines had to do with assets which were not at all in the philippines they had to do with assets which at the time were in switzerland and other places that the declaration of  has to do with an action against the marcos as they are by the government against the market that will be resolved and it will have whatever attacks it has to go to collect on them in the united states without filing an action or by the way things are immune it may it may well be that at the time when we have that judgment we will decide to come to the united states to do that that that is something that could happen but that's very different than saying that we're required judge thomas to allow this court to determine that that is playing it out there and you're going out of here anyway i mean it is conceivable that that will happen it is conceivable something else will happen but the one thing we know will happen if you are firm is that this money will be gone and that our right to have a meaningful in vocation of immunity will not be permissible if i turn to judge roberts question american greyhound is the latest of the cases that are before the court that discussed the question you raised to me what if there is no alternative form we believe there is an alternative form of life as i described but what if as mr swift claims there isn't well this is what the courts that because in that case there is courts and there's no adequate remedy available to the plaintiffs if this case is dismissed for lack of jointer of indispensable parties but this resolve is a common consequence of sovereign immunity and the tribes interest in maintaining their sovereign immunity outweighs the plaintiffs interest in litigating their claims we have regularly held the tribal interest in immunity overcomes the lack of an alternative remedy or forum for the plaintiffs and that is the rule which we rely i should observe that while i was incorrect as to my trying and i guess i'm just mccarthy now standing here with a piece of paper in my hand but it is not the paper in my hand that's important it's the fact that it is a piece of paper in the record which is a request for judicial notice which c filing that has been made in the forfeiture proceedings that have been ongoing that deal specifically with a realm that i think is is critical here that was filed last november i think i have taken more extensively was filed on it burns's record with lots of paper that i hope somebody will take the time to read as far as mr buckley is concerned the rule makes it clear that if  shall not be taken mr swift elected to go ahead and take the deposition which constitutes a waiver but even if there wasn't a waiver he was given an opportunity to take it again and  d not to do so the philippines and therefore why not let the philippine government handle this case and we have had no effort made by anybody for a fortnight effectively as a fourteen zero for a tran one of the essential elements for of a change of venue is where the party to show that there was a suitable alternative form and we haven't had that opportunity and if there is any temptation by this court to send this case to the philippines we would like to have that opportunity and i think i can speak for mr swift without his permission and sure of this court that no suitable alternative forum exist in this in the philippines for the handling of this case where justice will come within a reasonable time or come at all and one last comment i see the red light is on and that is one of the consequences  pains missing the trial if they have never shown that they have any interest in this fund as a result without an interest in the fund or without even showing that there are some interest in the fine other than monetary there was a question raised as to what was considered on a twelve minute to be appeal as you know the the law nice circuit is that it's court may consider supplemental issues that it deems important even when on then engine there referring to the later hearing and entered findings of fact regarding the impact of the philippine litigation and the pro priority of going forward in the habs sense of necessary parties i e the republic and the peace and then it c