first of all i guess basic some sort of new to this i just came in oh yes right why did you file a new jersey rather than you have five plaintiffs from ohio one from new york what's the reason for filing this particular action in new lower court cases say cases say that perhaps you do have a you know litigation privilege i don't know what new york law is but what the choice of law thing only you didn't bring up that mean that you know the differing we're dealing with it doesn't doesn't mean that you dealt with it the correct if and then then the question is can you wave choice of law and lord knows we're all over the ballpark in our circuit you got a forty four case that says you can't that was by the judge maris was on the panel as we're in this courtroom you got a fifty eight case parkway baking that says you can't then you've got a ninety five case and bank in nearly which makes a statement that you can although i don't think it's a holding so but i guess maybe my first question to you is why can't you wait for a choice of law analysis was ready for the other four and the choice of law issue i had i really thought that through i recognize the court at this point and not ruled on it and so you're if you're asking me the question and i just want to understand the court ohio and new york there were but they have independent tort claims under spoliation which were never litigated before and those claims there's no reason they couldn't bring them now in new jersey that's part of our class action they were unaware of this before they have there's the insurance cases name is i'm not i wouldn't get it was repaired on this one insurance case rises out of trenton new jersey where the car action occurs in new york they looked at the governmental interest of which case had the most substantial relationship and are correct but they also were using the governmental interest analysis does the new jersey forum have a significant interest as chancellor address the choice of life issue i thought he had said something in his he did he said it's not he said i have not decided it yet some discovery correct is it do you know if there is a you have you haven't really worked on this issue you know there's a conflict in the laws i mean on the on the passage don't judge just what is a good question that is one of the first questions the courts in new jersey asked i don't know the answer because i don't know on this issue with regard to litigation privilege whether there is a distinction between the two and i think that frankly even if we take  the new jersey litigation privilege it is broadest i think the answer is that i would be shocked and surprised if the actions that are identified which is identified squarely in footnote eight of our moving three and identified in our pleadings would fall within litigation privilege in any jurisdiction so i haven't looked at ohio law on this issue but i doubt that ohio is going to say it's ok to take evidence destroy it and the lie about in a conspiracy that's separate than actually represented to the court so to me i don't know j embryo whether there is a conflict or respond to judge which is a question but my guess is maybe it's an issue that we we ask for supplemental briefing because i think you only dealt with it on pages twenty two and twenty three of your brief  even give the devil its due and say well you can goes a little bit farther because if you take in and we're talking out of turn about if you know my just wanted law just jump in right at this point in lloyd mn what happened was and that's the most recent work in the new jersey supreme court so that's obviously where i focus false pleading that the guy wasn't really a witness mr lloyd men and that the basis for him being kicked out was just because he was annoying which i think is what the case was the court uses in that case it  hartmann which is the earlier decision by the supreme court and as judge albon points out in lojban it's it says directly as you pointed out judge trying to say that the question in the litigation privilege which in judge alvin goes back to the fifteen hundred hasn't even if there are threats and reports that's right so i think we're faced with a spectrum here and a spectrum here is this follows you've got a misrepresentation misrepresenting his year when in fact there is some judge that says that the question is is there a line and i think the answer is there is a line would be is it ok to take evidence and destroy it to talk about is different we're talking about fraud and you're talking about  the question here was fraud upon the was the litigation privilege how broad is the litigation privilege the litigation privilege may it may have addressed the individual representation by an individual but it just really goes so far as to say if i collect evidence disk have it as part of a plan a conspiracy because now you've got new jersey rico trigger let's assume for the sake of argument it is that it is inappropriate for a lawyer and a company to conspire to collect evidence astroid and in conflict there is got to be a line where the conduct for example of collecting that evidence and and conspiring about it because otherwise it would be open season on the courts what people would say and atlas clearly points out there is some point where the equitable cap power of this court to stop fraud does step then and so to me the question that's right that's right here is that that individual statement perhaps and so if you use our example a case in wichita kansas and they have a guy they hire local counsel and they say john there is no is best us in our tell file a motion to dismiss john walks and piles of motion to dismiss i agree with you he is absolutely immune to the litigation privilege you have to do then take a next step is it a difference that makes a difference if cahill gordon walks in knowing that it was false because now you've got the action of conspiracy and you've got the statement is that a difference that makes a difference the litigation privilege under william and says hey as s to that end of the representation maybe it's not a problem i can go ahead and live to the court you can just bar me you can sanction me you can't sue me but is it a difference that makes a difference  false statement i'll agree with the judge webspace those individual statements are ok but there is no indication that the new jersey supreme court went that far as to protect actions and every other case in new jersey including lojban goes back and traces the history to respect i think i think we're talking past each other and perhaps i'm just being dense the to your question try to put me into a box and say there's either statements or there's actions and my answer is theirs are they are your  they are but the question is foliation the cause of action it is your honor it's an independent tort but i was addressing a separate question which is the litigation privilege how because that's where we started off with how broad is the litigation privilege and my point simply is that there is clearly i'm going to be liable for that even though i'm doing it in the name of the name name of my client i got to be liable for it so there are limits to what i can do in this case the question of course is did disney jersey supreme court really mean to chilled when they walk up to the stand to give their truth we do not want lawyers to be worried about giving their truth i get it and therefore if someone overstates hyperbole even misrepresents the court says we don't want that chilled in the name of legitimate advocacy i completely accept that proposition and the court then goes on and says and the such actually decided to me that it's there may be some people who overstep who actually misrepresent and perhaps they get away with it doesn't mean we can't do something to him but we can't sue them this is different because here is the action can joined with the actual words that they didn't just independently walk in and make a statement it wasn't like mr savage walking  making a final saying get this jerk out of your this is a plot ahead of time to collect the evidence destroy it benefit from it and that is a conspiracy that is new jersey rico that's our pleading and then we get to the question of is that statement what was intended because of the litigation privilege and i respectfully submit that is in no way what the new jersey supreme court contemplated the individual statements find and that's why i drew that chief judge mickey the difference between the individual guy john in wichita kansas and b s f cahill gordon conspiring i think that's a difference that makes a difference the difference it makes a difference it should make a difference to this court because otherwise it could be open season on this court as well so the of the true claims that remain you know what is the fraud claim and how is it different from the fraudulent concealment claim the fraud claim is that they deceived plaintiffs by virtue like williams for example by destroying evidence hiding the existence of that evidence and forcing those people to litigate cases in the same thing with th the wealthy the complaint rule not in violation of it and in this case we did plead in detail that williams would have not dismissed williams would have litigated this claim had she known the facts same thing with the case in new york pled that we have a say and the record which i think the court the opinion below failed to consider we have proof in our appendix that goes through and says we b s f cahill gordon are representing to you there is no rely on this that's part of the proof the other side of the proofs are people actually saying we are dismissing based upon that representation and so the to me the what the court asked me here to do in its opinion is to say prove that it would have made a difference what the problem is i can't it's kind of a catch twenty two i don't have what i know is we lost we dismissed the case on those on those and those who matters on the basis of the representation there was no was  analysis of this we had to prove there was it's best just in there to help if someone is dying of mesothelioma they'd they've worked at a place where as best as is present and now the question is can we prove it's your as best as nearest present that's this present  reason we clearly have somebody dying because they died we have someone who's got a mesothelioma that was pretty easy to prove the part we couldn't prove because we had we think about it from this perspective the minus flooded so we cannot go back we wayback machine we can't go get the bestest proofs that were there in one nine hundred fifty eight fifty nine sixty sixty one they don't exist anymore so we can't go back and sample the air we do have someone who has an admission against interest them because they had be a defendant well i think that's probably a good place to start we in the opinion that the court states that we sought to refile complaints we sought to invalidate state court proceedings we sought to alter stay when we never saw any such really that's the three ninety six and three ninety seven of the record what you're asking for is if you were to go back to ohio in new york and seek to reopen they can't bring up race your god or any other preclusion doctrine the end on that one your honor we are torn because it's possible that that would violate the anti injunction act under atlanta coast but if you don't mind for a moment judge i am broken i procure from a different angle the simplest form of relief would certified people a class of those people who were had as best as claims against b a s f where those claims were litigated without knowledge of the fraud is is there no reasonable possibility no reason or plausibility of a amended complaint a thirty minute complaint that would pass muster and my answer is there is because of a asphalt under but notice one of the things we would ask is that if the class is in fact certified that notice to be sent at defendant's expense which the supreme court has said is ok after the class a certified that a class has been certified and this class is those people who have a claim against be a s f and relied upon or relied upon the representation there is no was that's just in the tell how many do you need and i don't how that would help you because then you're still stuck with these and there are some states i believe oklahoma's one of i have it right where in fact if i get a corrupt judgment i lie and i cheat and i get my judgement i can't reopen it no matter what i get there are some places where there's nothing i can do but there are other jurisdictions and if such in new jersey for example where if i obtain a judgement by fraud i can make an application i am not telling any lawyer what to do i'm not telling any judge what to do i'm not violating atlantic coast as i'm not telling anybody what to do but i can certainly they have a substantive right to know you have a spoliation claim are you not telling them what to do rational court to preclude them from doing something when you get an order saying to them you cannot raise raised to kind of in the we were seeking though that relief but right now i guess and i apologize i'm not addressing the court's question one i'm focusing on those that we should be able to ask or do you want to do is give notice to notice want why would it order a non foliation one of the allegations here is that they had evidence had a history of destroying it there is no interference with the state court action if we ask that they substantive right to actually get notice i'm not telling the state court to reopen the action i'm not telling the state court that you consider it don't consider affirmative pleadings all i want to do right now is say get noticed and make and have a simple order that sa nine and we actually asked for a maintenance of a professional truck or local this is paragraph and injunction requiring d s s and cahill to jointly and severally fund the maintenance of an independent trust we called it is the record repository for locating collecting housing archiving making available as best as materials so we did aspecific lee for that really there's nothing that violates any state court right in that regard so we don't violate a coast if those two forms of relief and then may be improperly worded and i will concede that there's other parts of the complaint that are really brought and that arguably intrude upon a state court right but i think the question before this court is is there no a declaration that a fraud was the prog was involved the yeah pushing that our theory on fraud your honor was that these people could not maintain that cause of action because they didn't realize the fraud had existed therefore there at the actual cause of action was not litigated before that that's true but you've got judgments we do and i don't know how that is not you trying to i'm not sure that that ron paid this in that one and i agree with your honor because under chick cam too i've got a problem in the realisation exception because it was not a matter of due to kate that i recognize that so perhaps we cannot sleep around that one but to me the question again is the court here dismissed the pleading stage saying there is no conceivable cause of action raise the greatest course of conduct that we can take here and i think the answer is no there is substance of relief that can be granted what exactly that relief is frankly i would like to have once i was here if we got past the other hurdles we have today i'd like to have the opportunity to replete in the third amended complaint but i think clearly i've demonstrated there's two cause of action that we could seek that are substantive right notice to the parties no and also the formation of a record repository if those released alone were granted that would significantly advance the dance because the places want to see that statement why shouldn't those people be notified chief judge mickey is right there are some places where the court may say tough luck it's too bad so sad you can't doing about it now there are other clay places where it may not but certainly it is a substantive and procedural way for them to get notice that this event occurred is something they were not aware of and second of all for those people who want to pursue who have ongoing claims and there are several moving a number in new jersey having the formation and one and ball only stand for a limited proposition that for the purposes of statute of limitations alone that's the only one that the statute that the new jersey rico and federal rico are coterminous when we look at all the section of the court didn't cite is the very section approach points out that new jersey is broader new jersey for example has gone through unsaid that it uses the word incidents not x it uses the f it specifically in this is one forty one forty one n j one sixty six it specifically goes on and says that the legislature new jersey sat down to discuss what's in  enterprise and they rejected expressly the narrow limitation that the federal law puts in that we only want to have the mafia and mafia like groups they want to have broader things so they defined enterprise differently one forty one n j one sixty one they also specifically went on and said and we want to make sure that other people are included and therefore new jersey rico unlike federal rico does not require the participants have operational management responsibilities one forty one one seventy  write but that but the answer goes deeper than that if you look at the chronology of cases and i think this chronology is important because it's going to be i think a focal point of the discussion that you're here shortly and it's important to look at these in context and number who arrive in matrimonial area and therefore the rules are slightly different and i'll tell you explain to you why the tower was the first one in one thousand nine hundred seventy four and that one says personal injury actions are a chosen action and the second one is krueger where the new new jersey supreme court  bets the court says at one hundred and j superrich to ten that personal injury actions are not a chosen action but then the next paragraph it says even if they are ok so the court these two cases and amerada i believe she lost her arm and obviously that was embarrassment her arm is missing the question the court is struggling with and the talgo in our auto is the loss of income from being able to uncover perform a job versus the emotional distress of being embarrassed because i can't wear a sun dress as i lost my arm on those two questions the court is saying one is personal one is not how do we know that we look at land work land where is the cases are ridiculous know what the new jersey supreme court said is under the equable distribution statute for matrimonial law if it is and a personal injury i can't wear my sun dress i've lost my arm that is personal to the individual but the enron of course remember hedges its bets if it is property then we've got to look at it differently landwehr says two things which are critical it then says and if in fact it's loss of income it is distributable and it says it in the very first only breach of contract claim or that kind of was business or property chosen action it's much more like a malpractise claim insofar as it results in a personal injury well the i think that when you look at who's filing the cause of action typically it's the seedings estate being prosecuted on the half and that's what we get to mattel brad barrows which is the last case i was going to go to but i think that when you look at these cause of action one they arise in the matrimonial context and so the court is grappling with how do we split a limited asset when you get to your question judge the court is splitting the action and saying it's a personal pain and suffering perhaps that is unique to the individual but what the supreme court has done in every one of these cases is also said the married couple are a unit and to the extent that they have loss of income that they have expenses that they have all these other things that and especially where you have atlanta and then barrow which is the last of the case on public decision but it is a chancery division decision what the court here doesn't cite of these earlier cases it's a trust in the states matter which is a lot like all the cases we're going to have here because the guy who wasn't the person has died of his best exposure i think in that matter my case i may have misunderstood it but a personal injury action he's  inland where the problem is the court disagrees and the reason is this the court but the court does draw a line judge and i don't mean to be rude the court is drawing a line and saying if there's an actual judgment that's a different thing in a future cause of action and they and they there are much of cases on that point but we're land we're just going through that directly addresses your point is it's drawing a line in the very first paragraph of the opinion and it says if it is a personal injury it's embarrassment it's something jersey law and what nails that down his barrel at the end because there is a trust in the state's case which is a lot like every one of the cases we're going to have here because the person is that i fancied i just wanted to before we the time that was absolutely clear a chosen action is covered and this is a chosen action that isn't going to my that's not good my question what this is what is the nature of the injury that gives rise to that it was an action is it a personal injury or is that the kind of thing you mentioned earlier with the embarrassment arising from the trying to look at longworth and said separates the personal injury which is a personal view visual not assignable from the personal embarrassment i might have that backwards but why isn't what new jersey has in mind here people who died and each one of them had a they have several they have their own personal pain and suffering they also were sources of income they were people who lived they they had an economic value in and out of the health that's decision i think you're trying to make i think the answer is it can't just be but i want to answer the question accurately out of respect for the court it's too simple to say yes or no because the question is what are the causes of action is the cause of action when you file a complaint right they file for pain and suffering which is part of why i sort of start splitting it very carefully here and then you get to the other parts of the action which are the parts of income the parts of loss of value of consortium all those other claims which are assigned as they belong to the and part to the other person so there are clearly parts of the complaint that the court here is not it didn't what they're citing amerada for the simple proposition that no choice of the question is not whether these plaintiffs can pursue the claims in some form it's whether they can pursue it in the federal district court in new jersey which has no connection but for the personal jurisdiction issues raised th yes if there is there but the five ohio plaintiffs and the new york plaintiffs have no connection with the district court of new jersey and so i do think there are while there are obviously issues raised by the complaint the threshold issues of where this case should proceed and how it should proceed i do think it runs straight into not only the anti injunction act but the whole basis of the separation of federal and state courts that judge kessler let me just defend just made a tactical decision and if you look at this that you dish will record here they replay it after wal mart v dukes came down and i understand that they said ok we have a problem with the class here so they pled some of the class allegations that cry to address anti injunction act is not some mere anachronism that could be evaded by creative pleading or procedural technicalities and the substance of it is are you trying to call into question the the records pretty clear there are over one hundred s pestis cases against b s f panic say in state and federal courts all over the country and there is no motion as far as i know where there's an allegation of continuing document destruction to the evidence and this in this were house wherever it is lack of proof if you were this is an evidence a stash that evidence is available in all of the current we pending or those cases which could be brought to some new statute of limitations as you then have this would be available yes your honor there was no serious allegation in front of judge shows or that this is an ongoing issue and in fact if it were an ongoing issue those hundred courts across the country they would be about what could be brought what should be done there are actual litigation cases going on today on the especially the dockets in cases including in new jersey and so i'm saying that to the extent there is any issue with a plaintiff who has a pending it's best to claim  against and what's happening in terms of the the discovery in that case that's actually being addressed by trial judges now so i'm saying there's not that's not an exception to the anti injunction act or for the federalism principle that all of a sudden now judge  become in as a pseudo discovery master and say i have some issues here and i'm going to corral them all in and act and both in terms of spoliation and i guess a notice program and address those so let me address the notice program as well is that again both notice and all the ation i don't think those were assigned as appellate errors coming up in terms of this is what we really want we really want to notice program and an action that's a shifting ground and i think it's a shifting ground in face of atlanta and the clear and the shifts go from the third circuit that you can't call in to a fact completed state court actions so now this is a new theory paragraph sixteen paragraph three sixty two prayer before relief that they want to direct the parties b s f from taking advantage of grace your cotta or statute of limitations issues and again that comes back to question right off and it's the it's the advisory opinion issue in terms of fraud they still have to prove a substantive claim for a plaintiff so a plaintiff here has to prove a substantive claim and i think they're putting the cart before the what they're trying to do is have a court finds some issues but not all issues and what isn't the case twenty two because if they proceed that when i agree that it's wrong the article three case or controversy advisory opinion issue but they're going to run claim but it's not a federal court in that situation who think we're now i think that's still gets to the end times option act right that that is that's the whole problem of having a federal court decide some issues and then taking that e go and hell saying it's not you can't mistake title for fact judge weiss is phrase that turned a great phrase don't mistake title for a fact and the fact that the effect of this order is to call into question it's not just to where is the proper forum where is this why here we don't why are we doing why are we asking judge chess or to litigate cases when they were litigated in ohio and new york and those courts can decide what they want as to whether cause of actions exist if your question or whether there's a sixty b issue under their letters or improper harming the case is not properly jer's well i don't know i don't think it was filed there's no personal jurisdiction problem i think though there is there is a there's a anti injunction act problem of what's the what is the connection of this court to the underlying litigation and again your honor to kind of judge kessler being asked to litigate these cases from ohio and from new york and it's putting him in a position and to your question chief judge nikki about what's happening here in the relief and how come the pleadings have spun out as they have it all has to do with wal mart past all the class action they have serious class problems and so they're trying to plead around that but that doesn't that's not a license to kind of get around the that's before you i do think it's part of the judicial record is below there is a motion to strike the plea the strike the class allegations and this is an on page forty of eight of our brief and it was very telling because what the pla said is we are not going to have many trials we are not going to prove up the elements of the underlying it's best escapes and so i think that is so rule twenty three is not front of you but certainly their admissions as to what they're actually seeking that they're not seeking to prove up their claims it then kind of leads into a question you raised and that is the fraudulent concealment plan and how is that plaid so and i think that again in a bridge unusual proceeding lloyd men and they use both privilege and immunity and i think that's an telltale sign and they also say the scope is extraordinary conduct i think is an exception and this is  in the framework is have they played up a fraudulent concealment claim by conduct and i actually don't think that they have well the conduct would be the actual taking the after you s taking the and having a confidentiality agreement entered into taking the evidence and putting sequestering away that that that would seem to be the case that has to be conduct that can be words i agree with you well i think they played some of that your honor i don't think it's sufficiently plaid and so i agree with you on conduct but here's why i say it's not sufficient the new jersey the new jersey litigation privilege i think they're saying we're not going have litigation about eye as i say i think that fraudulent concealment is obviously exempted from litigation privilege and so i think the new jersey courts have said we're going to have an exception with litigation about litigation it's a higher standard and so when you marry that with ball formally it's not just the recitation of the elements that there are cases there are bad things happened in the cases my case i would have gotten more my case i actually don't think that's enough i want to go to trial for three reasons one is that it has to be more than that and we know that is where first of new york times a new jersey court on fraudulent concealment where the new york eight unusual procedural posture and they were just nest and the court said which i think goes to the standard in new jersey if you're going to have litigation about litigation you have to at least make some showing of a case within a case and so wh we're going to sue you in a jersey statue limitations yes i was heart and what courts including new jersey no no no no you have to prove more that you would have prevailed in that case but for the statue of limitations and i think here when you have cases with anywhere the five plaintiffs anywhere from thirty nine to two hundred twenty one different defendants they haven't pled what happened to those defendants whether these plaintiffs edited later on that they had where they settled for a higher amount i don't know because it might be able to develop that there's the possibility they have to show some kind of damage and that's the way they would show this is but i think it has to be more grander when you have a case the judicial record is clear there are anywhere from thirty nine to two hundred twenty one defendants for each planted so it's not just well gee you look at prior specif settlements in terms of the defended you look at what this plaintiff actually alleges in terms of their causation let's say they work in a break factory and there are only allegations that they once used might used a towel product on one day i think that would you would have to actually say my client worked in a break factory they settled with bendix for x millions of dollars they dismissed the other two hundred twenty defendants because there was no there was no other causation because they that's within their power to plead and then in terms of what's a part of this court your honor they have not a they have not appealed the leave to a man that they were not properly given leave to a man i think they've waive that and in fact i think they've come to this court already at least until this morning in their pleading saying we like our complaint there are settled settlements would have been for more if that's the case because of the frauds of concealment that is the equivalent of damage it is damage i saw and so i come back to the elements of logic concealment are that there's a legal obligation it was material that was not a reason the plaintiff could not have reasonably obtained access to the evidence otherwise the fed that intentionally withheld altered astroid the evidence say that the fundamentals of the underlying litigation will also require exposition and that's what i'm saying in these type aces with multiple defendants you require exposition and this isn't just my advocacy that they don't want to do it this is where i come back to what they told judge kessler they said and this is in the record at thirty five forty sex in their opposition to strike the class or motions this is one of the critical faces because the claims here are for lost causes of action the plaintiffs have no obligation to prove elements of their underlying personal injury including claims for product liability in this case it think i don't think never right i could i could actually forsee situations where plaintiff would say i sued these defendants here's what my settlement with these defendants here is what these defendants did here's my injury my exposure to now the offending substance of claims because the only substantive claim that i think is left after litigation privilege is fraudulent concealment and i think that's a higher standard in terms of some exposition to pick up rosen but that there's something that has to be  for the fraud hook yeah and also a case within a case that there that's something you have to provide an exposition of something more than just following the elements and that's what i'm getting to if you look at their complaint yes any any lawyer could just follow the elements but i think here there have to have some exposition with so many defendants so many causation issues that this court has dealt with over the years there has to be something more than just saying i would have settled for more because fraudulent statements to back court says a statement made in the course of a judicial proceeding is absolutely privileged and wholly immune from liability we cite in our case in our in our case in our briefs giles from the district of new jersey just extraordinary in scope and then they go on to say since it's the privilege or immunity is extraordinary in scope the remedies for you are to seek sanctions initiate disciplinary proceedings there may be criminal proceedings as a practicing lawyer the bar i know it's never been accused of it i hope for never well your honor but in terms of my reading of the new jersey supreme court in the law there they've made a policy decision that's actually brings us full circle and what's what law object to being briefed under new jersey common law getting back to your question about rule twenty three because i think they realize they have a huge klaxon problem in terms of applying fifty states to these issues so they said ok we're going to brief it on to this issue so they did it underneath and it worked so judge has or had that nobody objected and i don't think they've objected on appeal as a sign of error and finally your honor then if even if the court were to find that it's not wave a ball and they somehow preserve it at the worst case scenarios that you would agree man to judge has or for him to conduct a short law analysis which may require an evidentiary hearing in terms of trying to decide which law applies your client is part of your yes that is certainly correct and so i think what i would propose to do today with the court's leave is very briefly to address the anti injunction economical three issues because i think we would acknowledge that those issues are not dispositive of the talking about this case the case that the court has before it because the plaintiffs have sought some other types of relief and so the court would need to address the validity of plaintiff's claims under state law and so i think with  question of choice of law it is certainly true as mr a staff said that this case has been litigated on the assumption that your jersey law applies and i do think that the better view is that choice of law can be waived which is to say that if the parties litigate your case certainly have the circuits lined up with the fifth sixth and seventh go your way possibly this second i'm not so sure yes and there is some authority from this court as you acknowledge and i would say  that is true but i was telling my right was there is substantial recent authority for the proposition that when parties do not raise conflicts of law the court can apply the law of the form state now of course choice of law conflicts section one thirty six comment h which i think stands for the proposition that when no party has raised choice of law a court may apply the law of the foreign state and after all you look to new  jersey law when deciding this question of conflicts of laws because new jersey is the form state and as judge amber pointed out your jersey is a second restatements state but you think it's important to kind of understand the backdrop of this case which i think underscores why it makes sense to apply new jersey law here the plaintiffs brought the city ot clients and they proceeded under new jersey law and obviously when we moved to dismiss we asserted the litigation privilege under new jersey law at that point the plaintiffs made no effort to rely on the law of other jurisdictions i suspect in part precisely because places wanted to maintain their ability to proceed on a class wide basis and so judge kessler decided this issue as a matter of new jersey now i think critically before this court the plaintiffs also stopped short of asserting that ohio law or the law any other jurisdiction pot is the plaintiffs in footnote seven of their briefs that page twenty three court and before this court and we certainly think the choice of law can be waived and that that is the better view as reflected in that provision of the second receipt which i cited i know parent that equally that we dispute the proposition that under ohio law it is clear that the litigation everybody got conflict would not apply to fraud case which would support you which is a state law not supreme court case and then you have the northern district of ohio case kramer's which seems to go the other way but it's a no this report yes but i think that the more critical point is that the plaintiffs here really are litigating this on the assumption that new jersey isn't at least above the line in their brief they simply take issue with our characterization of new jersey's expansive litigation privilege and since we're on the subject why don't i just go to that point very briefly a judgment has an address some of your questions with regard to new jersey's litigation provide i think with respect that it is quite clear that under new jersey litigation privilege it applies beyond its sort of traditional does it not can apply to conduct well that is correct and that is why we are invoking the litigation privilege as recluse of the entirety only of the fraud claim and as judge chesler noted in a footnote in his opinion the litigation privilege i think the fraudulent concealment claim interesting lay in this case is based at least in part on statements because if you read that claim it relies on what we have that i wonder why you do and it's a wonderful strategy for argument and let's forget about trying to put it together between the state in the conduct this book is on the statements or just focus on the conduct for a second and look at that if they survive the pleading challenge and if the judge  wrong in saying that they didn't sufficiently plead the present concealment you are conceding i think that the litigation probably would not bar that came back and with well there would be an open issue i suppose for judge chester to resolve on remain extent to which the litigation privilege would bar the state law claims other than the five crimes and he didn't resolve it precisely it would be a matter of law for me for us the sword well i think it would be better frankly for that to be decided in the first instance an act of sequestering and putting away evidence that was in call before it that's there's no communication whatsoever that's going right and i'm not well let me step back and just say that i'm not disputing the proposition that you could plead a fraudulent consumate claim in the abstract that was based purely on conduct my submission is simply that when you look at the fraudulent concealment claim that is pleated here it turns almost centrally on though yeah and so this is just an issue that would involve sorting out what the allegations are implying that the litigation privilege and that is why we are not arguing before this court affirmatively that this court could affirm the dismissal of all of the state all claims in their entirety based on the litigation pretty much the only claim that an ambiguous lee would fall under the litigation privilege is the straight up fraud claim which is obviously a purely misstatement based quite sort of a disciplinary proceeding is there any remedy that could be had if your client has done the things that are alleged of the courts that have extended the litigation privilege to fraud claims and there are courts outside new jersey that have done so and actually relied on the potential would mean you can have something other than primary the only other while there is one other potential remedy but i don't know that it would apply in this context and that is a claim for malicious prosecution which has been extended to civil claims as well as criminal claims there is obviously a very high bar for malicious prosecution clients precisely out of concern about the potential or harassing use of that cause of action and so of course you have to show lack of probable cause and the other elements  defamation claims which after all is a species of intentional tort and yet defamatory statements made in litigation have always been protected i think those courts that have clearly extended the litigation policy reasons so yes there are good holocene reasons to extend the litigation privilege for fog and when you look at the new jersey and i think that the new jersey cases on this issue really do make clear that the litigation privileged pi's expansive as my friend this race have pointed out although the new jersey supreme court has not specifically applied the litigation privilege to fraud claims in whiteman and the prior decision in hawkins the new jersey supreme court made clear that litigation privilege really applies without regard to the underlying type of cause of action and of course when you look at the elements of the litigation of which they don't take the underlying type type of cause of action into account either and as mr a sec whited out there are numerous cases under new jersey law not from the supreme court but from more courts or from federal courts applying new jersey law that have applied the litigation privilege to fraud claims and i think with respect that the river ten case is really on point here that was a case involving allegedly fraudulent statements that were made to induce a settlement and yet the appellate division applied the litigation privilege to the lawyers conduct in that case and so i think with respect that's probably the best example of an actual case where the new jersey courts have applied the litigation privilege to five times and i want to say a word about fraudulent concealment because to the extent that a fraudulent concealment claim could survive political privilege here we do think that there is really a fundamental pleading the fact with pla and there's a lot to say but i want to say just well let me just say one quick thing on this point because i realize that i'm trespassing on the court's time of the plaintiffs here have failed to allege facts indicating that they would have  tained a better result but where the omission of mr isn't said yes and i want to point the court to the complaint on this because i think it's very important that the court review the specific allegations on the fraudulent consume and claim and those allegations can be found starting on page one ninety three of the appendix and running to page two zero one in those allegations i think that the most that can be said about those allegations is that there is an allegation that the plaintiffs result their clients for quote nominal or token consideration instead of full fair and complete compensation but there really aren't any affirmative allegations that the plaintiffs would have obtained a better result i think in part that is because of the difficulties of causation with regard to these types of claims that this court is well aware of and that mr a c f reference i think in part that is also because of the somewhat unique way in which as best as claims were resolved i think this goes to the question of settlements plaintiffs allege correctly so i embarrass counsel but to point out that it underscores the complete indifference that plaintiffs have had towards my car and throughout this litigation notwithstanding the fact that they have  refused to voluntarily displace him from mr pollack said that your client was involved in collusion with others to destroy evidence well that's an allegation i understand that's the allegation but i think that mr pollock's version of the allegations is somewhat informed by the misapprehension that mr healthy was working for saying as the initial pleading stage the allegation was have mr how was an employee of engelhard during the relevant time period and we had to point out in fact it's in the record that mr howe ki separated from the company in one nine hundred eighty six years before the plaintiffs even filed their lawsuits so the essentially the upshot of the claims against mr howe or that  was involved in a document retention plan which did not affect any asst as a slippery geisha and during the time that he was with the company and in fact presided over one is slight substance in the tao so far from being an obstructive that act he was involved at a time when the company was fully forthcoming it's only what happened later it litigation that was years after he left the company that it becomes part of the the company's conduct becomes even arguably problematic but that has nothing to do with him it wasn't there and i have to say he was only there in the company for a few years twenty eight years ago to be exact but also throughout the state litigation as well never has there been a suggestion mr howe could be named as a defendant in the underlying personal injury suits he's never been subpoenaed to testify and in fact even after pad one zero and in connection with the sampson case my client to testify in what essentially is a proxy for this case so it's clear that plaintiff's mr halkett is an afterthought and it made me that you know they proceeding against him on the theory that of course nothing extra to take them along for the ride but the cost to mr howe hit are obviously very significant and leaving aside the conventional costs he's a practicing attorney  and we all live on our reputations and when people prospective clients are making decisions as to whether or hire him in this day and age the first thing they're going to do is they're going to google his name and among the things that are going to come up in the results is the fact that he's a defendant in a week of sued dow you know we can parse what that the implications are of that are two among us lawyers but to a perspective  there is a real threat of harm but i raise this argument not only because i think it's grossly unfair that is being taken away on for the right but it also underscores the fact that there's no real case or controversy in this in this matter specifically plaintiffs of sought soley equitable relief against mr howe no damages no legal relief of any pint and to the extent that they are seeking is the fact that there is no purpose in this lawsuit because even if successful plaintiffs cannot show likelihood certainty that it's go the interest of the parties in any way it's completely contingent on the unlikely event that some day some way some plane it's going to it's going to strike them that he has some connection to a sadist as it's crucial complete that he had something to do with it this isn't the contention in the complete that he had something to do with the destruction of evidence what did you do it again  because so allegations against him in the complaint or that before he left he engaged in a document retention plan and that he was involved in the west for  hundred eighty six again before any alleged misrepresentations were made in plaintiff's cases before there was any production of documents he clearly wasn't involved what effect ultimately is the outcome of this case is going to have on the interested parties and i suggest it's way hypothetical it's beyond hypothetical it's unlikely  is i think that the critical point understand here is that the plaintiffs are seeking an injunction that runs against all of the defendants what's a little bit unusual here is the plaintiffs aren't seeking a to them is if they even if they get it how does that really affect you right and that's right and as you pointed out cahill was obviously not a party to any of the prior underlying specified suits to the best my knowledge cahill is not in fact the defendant in any other lawsuit other than this one on the set of allegations and so the reason that the anti injunction act is important to the whole defendants is because in the event their worst subsequent state court lawsuits against cahill for instance based on a fraud theory we would want to be able to assert the precludes of a fax if any of the prior state court judgments and to the extent that we would do so we would obviously do so in the context of those take or proceedings what the plaintiffs here are seeking to do is to essentially tie one hand behind our collective backs by preventing us from asserting certain defenses in that subsequent litigation in the event that it arises and to the extent that the plaintiffs are invoking the so called stranger exception to the anti injunction act that exception applies only where the party seeking the injunction was a stranger to the underlying state court proceedings not a case as here where the very party seeking the injunction is a part it was a party to the prior state court proceedings and is now seeking to avoid the effects of those things and i wouldn't print that equate that we haven't had a lot of discussion this morning about article three but relief that stops short of fully and conclusively resolving the underlying dispute between the parties now i would note fedak lay on this issue just one further point and that is that the plaintiffs through mr pollock point to the allegation in the complaint that involves the maintenance of a trust containing the relevant underlying documents i believe it's paragraph sixteen h of the amended complaint and i think that that is actually relief that would not raise an injunction act problem but would raise an article three problem precisely because again it is relief that stop short of fully and conclusively resolving the underlying controversy the underlying controversy obviously being yes pestis claims that the pla to go back to the state courts in question to the extent that they want to reopen the judgments and obviously they remain free to go back to those courts in the event that they want to pursue claims against cahill as well and to the extent that we were talking earlier about the defects in their pleading concerning fraudulent concealment and some of these other claims those effects i think flow directly from the fact that the plaintiffs here are seeking to proceed on a class wide basis so when you look at those paragraphs on friday and concealment that i point earlier and you kind of scratch your head you wonder well why didn't they allege more about why they would have obtained a better result settlement you know wouldn't it be easy for them to so latch i think the answer is they wanted to maintain their ability to proceed on a class wide basis and while it may be true that in other contexts it would seem plausible to be able to allege well if you don't lean on this information we would have obtained a better result the very unusual nature of asbestos litigation with aggregate settlements or you're getting just a single check in response to your claims underscores that it is not self evident that if they had known that the assets products contained us past us as plaintiffs undisputedly knew with regard to other defendants in the was looking at this not in terms of an injunction precluding them for raising certain defenses but looking at it in terms of getting an order that what happened here was fraud and i asked why is that not an article people think i put you in terms of why isn't an advisory opinion and this you just came up again and then go back to it why would that not be an advisory opinion the is that point nothing would be pending as i understand it would take that judgment if you were to get it and use if a case has already been adjudicated then under atlantic then obviously we are now telling that court to change its mind that would violate the anti injunction act i agree if the but there are if the fraud claim has not been are currently pending actions or hundreds of cases of oil and counsel currently set that are currently pending why would this court not by the same coin for at least those cases have the right to render a ruling and say yes there was fraud and at that point the court  court the nature of the testimony it was question point blank so the statement he would not question is simply untrue the allegation is set forth in paragraph forty one in the house that isn't just some guy he is the guy who was in charge of litigation  at the time that they were destroying their going through the great courage of records and he is the guy who oversaw he was in charge of litigation at that point in time but the claim was that someone else was the order to sequester that  it sounds like you may just been at the wrong place at the wrong time it could well be but the fact is he was not a passive figure like a paralegal or secretary he was a decision maker at the company and the act was a wrongful act as we've alleging paragraph forty one  last point with regard to lojban which we spend a great deal of time on does it make a difference to the court and this is an honest question does it make it a male is more dishonest the question the question is that i misspoke earlier i believe i said that they said there's no evidence of his there's no was best to center tell that's not what they said what they said is there is no evidence of his that's us and our towel and the discovery etc and so to me it raises a problem under lloyd meant is it really meant to cover fraud the question the judge went to really but is also meant to be a blanket cover for the fact that if i say there's no evidence of this don't bother pursuing that discovery rely upon it that raises to me potentially different problem lastly with regard to our scrapped i think that's absolutely right and i'll close on this point of course unless that you've been very patient as a tribunals i appreciate it the last point i would raise is i respectfully disagree that we didn't spell out in in volume look at williams at paragraph dismissed those claims chiefly because they didn't get the truth and apparently council wants us to go farther and say and i would have gotten a buck fifty or gotten two hundred the  she destroyed the evidence you can even hide it from me pretty tough for me to then go through and see with more specificity and quantify exactly what i lost but we've articulated everything we could have and i don't think  to make leading into a game i think the purpose was to do exactly what the trial court supposed to do is serve as a gatekeeper he bogus complaints out hold us to our feet to the fire make sure we properly fleet back this is a hundred twenty something just want to ask if counsel could prepare a memorandum probably no more than ten pages maybe to submit by the end of next week ten pages double spaced i should say can the choice of law analysis the waived and what would be if it cannot be what would be new jersey's choice of law with respect to the litigation privilege issue you're honorably done and you