initially was submitted this case and the next day returned it with no relation to the existing case all of the information that america prize and also the district attorney have submitted in conjunction with this case brought there by not related and the timing and the time frame does not apply so all of the decision making that justice  taylor swain made just does not apply because the information and the facts that were presented were not appropriate the other one of the other arguments that  the other pieces that i also want to raise is that america prize their fraudulent behaviors and the time frame that is related is the time frame that is prior to this and it's in my brief so i'm not going to bore you with those details but basically the compliance supervisor did not provide the appropriate supervision they did not  provide that information and also in the second amended complaint the federal rules of civil procedure eight do not requires that you have to bring all th servants forward that's what discovery is for discovery is for evidence to be provided to speak to the different things that are raised in a second amendment complaint so this purchase missile is an appropriate but also it's not required that all of that information be provided and that's based on on law and the other thing with the district attorney's office and so i still have a minute is that there are unethical on an appropriate behavior of their handling of my criminal case and their prosecutorial misconduct was also hidden and so when you talk about when you talk about the fraudulent concealment that was occurring it was occurring on both sides i'm primarily by merit price because they were supposed to provide according to the franchise agreement compliance supervision that was in association which was what was required by federal and they did not and that was proven and it also was prevented and the which showed that they basically did not provide it so because of all of these things i'm asking that the court reversed the motion to the motions to dismiss because they good morning your honor as michael zaretsky for ameriprise financial services inc in light of the relatively brief period of time i have for argument i believe the parties have pretty well set forth the relevant facts and arguments with respect to this will cause position that because judge hellerstein did not accept the matter or returned it as not related i don't believe it's relevant to the arguments that are before the court today the arguments  facts we sided with respect to what took place in the charting action in the district court are relevant and the court can take judicial notice of them in this case and that's why we cited them not because in some way they were related matters not assert any claims against them our prize and we believe that the decision of judge hellerstein in that case that found ms well responsible for the actions that caused the losses of these various investors that she says led to my recollection and in addition in the complaint that there are men of complaint alleges that she was told from the very outset when she first mentioned it to the supervisor that she alleges that she told him about it these  totally yes you are and i'm saying that there was no opportunity or possibility of quotes concealing it from her because the discipline took place after she no longer was associated with a for starters i don't know if that fully answers the question but there was no concealment of it she had nothing to do with the company anymore and he was in fact disciplined as alleged  in addition as far as a claim of fraudulent concealment goes as we let our you know our brief there has to be an additional element of either a fiduciary duty or some having material information that the other party doesn't have and there was no such information of that type in this case i see my time is basically up i don't know if the court has any questions for the questions for me thank you equitable relief be it via injunction or writ of mandamus nor did she make out a stake claim of malicious prosecution basically because at that first level she failed  to comply with the condition precedent of making the allegations or filing a notice of claim within ninety days and moving the complaint within a year and ninety days with respect to the equitable relief she seeks the underlying claim appears to be that she seeks an injunction to ask the district attorney to reopen her conviction and prosecution because she believes that sense ameriprise did not adequately supervise her somehow or another that we leave her of her guilt it has nothing to do with her guilt whether or not america price adequately supervised her doesn't take away from the fact that she lied to her victims and misrepresented her position regarding the invest in investment when she talked to her and vester someone's what she's basically saying it sounds as if that i'm a licensed professional and because i didn't have a supervisor telling me not to lie to my investors i should be free of guilt but it doesn't work that way at the end of the day she remains guilty and her  the types of lies that she told her victims and for how long and how many with respect to the claim that the forfeiture proceeds were somehow inappropriately dispersed she was represented by counsel they were both disperses of the legal counsel fees as well as the restitution that was ordered both in the forfeiture court and in the criminal court and supreme in both cases were both court ordered she was represented by counsel we did not obviously the district attorney's office did not disperse the restitution from the supreme court by judge whitner that was done by the court and with respect to the forfeiture orders it was done through the through the judge shulman laying forth which victims got how much and it was dispersed accordingly as the records that she last know if you have any questions thank you very much and not only did they not copy me on any of the disciplinary actions of ameriprise which were involved in the fender hearing but also if you think about it with a franchise agreement i was a i was a financial advisor according to the way that the financial advisor community works and according to finish i asked a financial advisor and told to be dependent upon my supervisor a supervisor has a series twenty four which allows them to actually provide compliance supervision as proven and that finra my license was a serious seven so this person had fifteen plus years of experience over me so at the time so basically you're told as a financial advisor to depend on the people who are supervising you especially a compliance supervisor so when that compliance supervisor doesn't follow the registered principles and formation or the n a s d rules how are you supposed to know and call them out on it when you have less experience than a do they are the people who are supposed to be following the rules i signed the the franchise agreement excuse me but that also has a clause in that which does not allow them to get out of their responsibility to supervise and that's really important for this court to consider because it says in the franchise agreement except for any claim based so fully on the willful misconduct or gross negligence of america prize financial american express financial advisor richard was at the time or its officers agents and employees were based solely on non performance by american express financial advisors of its obligations here under in the franchise agreement when i signed the franchise agreement of course i read it but i'm not the person that is supposed to hold them to every single thing in the franchise agreement they are the people that are supposed to know what to do with the information that i provide them i know what to do and i ask a question because they're supervising me otherwise you would be telling every single person who is a financial advisor that they should be able to call out their compliance supervisors for the things that they are not doing but i'm telling you that that isn't reasonable because the people that are underneath them if you will are basically relying on them for their supervision and if they can't provide the compliance supervision that's pretty that's actually stated and provided through the franchise agreement what does a financial advisor to do i mean honestly what are we supposed to do because we're supposed to depend on them and if i bring a question which i had done prior to any of these investments to my compliance or provision a my branch manager and the person at american express financial advisors who is supposed to be supervising me who is supposed to be following me and they asked you rules who was supposed to be actually providing this type of supervision and failed and that's a person who basically told me he was monitoring my book of business he is the person who lacked and did not provide that compliance supervision and that's why the period of time that this decision was made on is wrong