turning to the regular calendar i understand all parties are here so i will turn to the first case f p p versus access  you can take the podium if we were to remain and the fraud claim to the district court says the district court has already decided that there was a meeting of the minds with respect to the most important the paragraph that you're concerned about and that pursuant to this important paragraph your client is owed nothing and you happen to peal this finding if we would send this case back to the district court what would you get well in this case we would get a trial on the fraud claim which is not what happened and that is different breed what how would it be different your evidence with respect to  found and you have not appealed the idea that there was a meeting of the money that your client agreed to this paragraph and that under the agreement you are owed nothing what's new what's collateral what's collateral here is that the representations that twenty four seven which is access his predecessor company made two f p p were fraudulent they knew at the time that what they were saying was not true in two  respects that they knew that one cent c p m charge was something that they used internally they did not disclose that and then they also knew that as the word methodology was used in the a p a didn't you present did but it it's also important i think it's the case that the judge hosting wondered about the veracity mr rahman yes he did but missed by what would be new what would be different what would be different is the f p p would be allowed to did not present the jew would present now well judge hellerstein prevented certain questions from being asked as mr robinson so mr robinson wasn't allowed to testify to testify as fully as he otherwise would have we also submitted a twenty seven page offer of proof which included twelve exhibits that were not submitted to the district court in this case so there are two were not submitted though they were rejected they were not submitted give us an example of one of the questions one of the questioning the pieces of evidence including e mails and you know other documentary evidence one example is a power point presentation that shows in fact that f p p excuse me twenty four seven was calculating there are no pr based on the understanding of f p p not twenty four seven as it argued before the district court and why was that offer it seems to me very important dispositive why was that offered i think in the in the course of this trial there were as i said judge hellerstein prevented a lot of questions and so there's only this was an attempt to be off or i don't believe that it was but judge hellerstein continued to was very forceful in directing the course of this trial and i think and even during objections which i think mr corcoran would agree one party would object and the other attorney would try to explain and he said i don't want any argument and so i think you know we've all been in trials there's only so many times you can anger the district judge and there's no especially in this case where he's the finder of fact he found the mr robinson was was not credible yes want understood aren't you bound by the wind that preclude a frog finding at this point i don't think so because because of the other evidence that could command credibility is a multi faceted determination and you think that with the other evidence that you haven't really identified the judge would change his mind and say no now i think that robinson is credible i think he made and i also think it might be worthwhile to send this case to a different district court judge who doesn't have those preconceived notions so that the  agrees there was no trial on the fraud claim so know that he tried it as if there were fraud climategate prevented evidence from being admitted and prevented testimony based on his understanding that there was no fraud claim so when he says on the record move on that's not relevant that's the not the right question he is saying that's not relevant to the breach of contract clean he is not making that determination as it relates to the prior claim because in his mind germination to dismiss the fourth client before the start of the trial i'm sorry to make that determination to dismiss the fraud claim before the start of the trial you did but that was not clear to the parties at the time in the context of the transcript it sounds like he's saying you know what is your evidence on friday i'm not sure that that's enough it will be dismissed and what reading into the transcript it sounds like he's saying it will be dismissed if that's all you have but unlike some of the other cases it's access cited at that time he didn't have any evidence before him on either claim and so he wasn't you know it wasn't clear to the parties and that's especially true here where f p p had three decisions and i see my time is up i'll just briefly conclude and thank you p p had three orders from judge swain who's the prior district judge in this case that said f p p did state a fraud claim as a matter of law there was summary no parties were entitled to summary judgment but also on the fraud claim and then texas move for reconsideration on summary judgment please the court my name is paul cochran i represent his axis formally known as twenty four seven some i must respectfully disagree with with what my colleague said here about the fraud case and evidence not having been presented in fact as dismissed for that very purpose they put in all their evidence there is no additional evidence if you look at the proposed findings of fact and the pretrial order and their and their offer proof afterwards the evidence on their fraud did and he explained it there's a suggestion in their briefs that they were given notice and an opportunity to be heard that's just not the case it's it's not clear that he it's not clear that he dismissed the fraud claim at the outset i mean it but he tried it as if the fraud claim was still in the case it's so it is modeled it's muddled in mr mantle's mind if you look at the transcript in summation when the judge raised the issue mr metal said i want to dress the fraud case judge i believe i dismissed that and i said that's right we didn't litigate it a twitch mr madden responded yes we did i put in my evidence on the fraud case so it may have been muddled in mr madeline's mind but we weren't trying the fraud case but it was it was a really relevant because the fact of the matter was it was the same issue when judge tellus dean asked mr maddow in advance of trial on two separate occasions to explain why the fraud kit claim wasn't duplicate of the of the breach of contract claim he couldn't do it he told the judge that he was going to show that there was a misrepresentation as to what the actual fee would be what the c p m would be for basically you mute media and that there was some misrepresentation as to intent to give actual advertisers fees that was exactly what was dismissed it and i would point out that it was not just because of the merger clause and not just because of it is finding it before but he people he cited a case that said it said under new york law if there is a conflict between the written agreement and the allegation of fraud you can't rely on the written agreement controls and here their whole alternative theory for the fraud claim which judge hellerstein dismissed as duplicative was that if the contract is exactly what the with the twenty four seven says it is then we were defrauded well if the contract said exactly what we said it said then it's clear in the papers you can't have a reliance on a an inconsistent representation and make out a ford case under new york law but let me get back to what was tried here for a nine days we tried this case before judge helicity and the five of those days focused on mr robinson's testimony that he was misled about what he was getting for the c p m for basic video media he claimed he was told he was getting all advertiser fees and then he testified that in the last few days there was an exchange of e mails in which the twenty four seven promised to give him the actual fees as he requested and he claimed that confirmed the fact that he was misled and a judge helicity and found that he was incredible on both of those representations is position with totally inconsistent with the documents all the documents in the case show that he knew exactly what he was getting basic video media fees far from being what they were suggesting that brief the most significant category was the least significant category of the net revenue component if you look at the  the documents the judge tell us steve relied upon and concluding that mr robinson was incredible at s a one fifty three this one fifty four is a november first projection sheet that was given to mr  p p would get for basic video media fees would be one point seven five cents of that thirteen dollars it's clear isabel in the document and what did mr robinson tell the court he said i didn't read that mr robinson who was a financial analyst in his early a career and who is doing this deal claimed he didn't read the document autonomy exactly what he would get the basic video media fees and then they tell you the basic video media fees was the most significant component if you look at the same document which the projection sheet that mr robinson had when he entered in disagreement it tells you that basically the immediate fees is five percent of the projected revenues the reason they didn't get it earn out payment here was because the technology fail the projections of the parties entered into an agreement on expected ten million dollars in revenues for this for this twenty thirteen revenue year the revenues turned out to be one point seven million dollars one point seven billion dollars fell far sho payment the on a payment would only would only be applicable if they realize more than five million dollars in revenues they didn't if the total revenues was less than two million dollars so there was no basis for judge hell esteemed decision not only found that mr robinson was not credible in all of his points but he he went through each document and showed why what mr robinson was saying was inconsistent with all the documentation in the case he's dismissed it as incredible and that finding there's been no appeal here if this were sent back we'd get summary judgment on the fraud claim because if there's no it's it is reza judicata now that the parties understood exactly what th and then mr robinson was lying then and he would be lying at a fraud case so there's really no basis to send this back would be a futile thing to do so it's nothing left to decide on these issues thank you did not happen in this case additionally with respect to the summation mr madoff said he did say that there was some evidence of fraud he didn't say i was allowed to put in all of my evidence there is as we have discussed some overlapping evidence here why  is why it required was required for a student cut and collaterals since he was trying it as you say on the unfortunate assumption that the fourth claim had been dismissed why wasn't all the evidence just put and that's what i'm trying to understand i understand in this case as i've said judge hellerstein very actively prevented certain questions not only from mr maddow but also from mr corcoran across the board it's a bench trial so he was trying to stay focused on what the issues were that were relevant what was relevant to him not the fraud claim now we all know that so in this case he prevented testimony from mr robinson as i said that starts around page three ninety two and goes up to four twenty although the first fifteen pages are the most relevant mr robinson testified that that he understood that that they would be getting the higher rate right and whether you call it a contract claim or a fraud claim he said that was his understanding and based on the documents which apparently showed that in fact it was the lower right i mean how do you how do you get around that now how could there be a different finding now because the fr separate from the breach of contract claim it's going to be based on the same arguments that is i didn't understand i was misled but the documents conflict with his assertion that he was misled yes and that's important for a contract claim but in a fraud claim that's based on the misrepresentations that twenty four seven made to f p p and just briefly before my time is up i want to mention the sanctions that access requests that is not appropriate in this case sanctions must be filed as a separate motion under rule thirty eight that procedure was not followed here but more importantly there's no basis for saying since we appealed this case as a matter of right as we're entitled to there was no trial in the fraud claim which is what we were expecting and the fact that access disagrees with effie's f p p is position is not worth saying since their argument is not based on bad faith or a frivolous case it's merely that they disagree with our position which is not sexual conduct thank you for your time do you  admit in a moment we remain that the judge telegraphed his view that the freud would not survive a couple of times even before the trial i think that he telegraphed he did telegraph his presumption before he heard the evidence but especially in this case where the parties had three different decisions that said that the frog claim is going to trial and reviews judge wright but if judge hellerstein wanted to reverse judge swain's rulings which i agree are is within his discretion but he has to explain that under the law of the case there have to be cogent and compelling reasons and those reasons are was not enough to win he said i think i believe this is duplicative no because that is exactly the opposite of what judge sweeney holds so there's there's no reason he doesn't articulate a reason to disagree with judge jury and there was no new there was no new case law there was there was arguably some additional evidence but he didn't  and he told f p p he didn't consider their offer of proof so he can't rely on that and there's no suggestion that judge one was wrong as a matter of law there is plenty of cert second circuit case law that says that a fraud claim especially fraud in the inducement can be separate from a breach of contract thank you thank you thank you both will reserve decision