today representing one thousand eight hundred persons that are members of this class and i'd like to begin my remarks by highlighting three points that i want to cover their overarching theme and that is st with regards to the article three standing issue robbery i'm sorry kickbacks are merely a form of bribery which inherently harm consumers no court has held that a consumer is not harmed as a result issue you should do similar here the cases follow one to right after he went after each other before that he could receive this court's guidance with regards to that issue and nothing nothing place any of these one thousand eight persons on the increase notice and certainly there's no evidence the record that any of these class members actually made anything free regarding the relationship between lakeview and the north ups we think it's powerful evidence and finally with regards to the motion to compel regarding the waiver attorney client issue that she nikolay important in this case because it goes there in an act of concealment mr northrup told his supervisor to his attorney said that no rick no disclosure to these consumers need to be made in fact none ever was and we believe that that is important based on this course jurisprudence that that finds that there's going to be a waiver of the same subject matter with that attorney but even in the square is never adopt the fairness d but if you did adopt the fairness doctrine this case you should find that in fact my clients we prejudiced as a result of this because there's no way to untangle that if i said that communication that mr northrop gave communicated to a supervisor who was a rd party not subject that he either did receive that advice or he provided false misleading information to his attorney regarding that because we think that if he disclosed the reality of this relationship the reality of the kickbacks this case that were closely tracked by secret secret records that rick they were keeping b etween them that no lawyer with her saw would have ever given advice that that would need to disclose let alone whether that can even be done so moving now to the arms to the article three issue we think that spokeo and i think courts are finding that spoke now every court that's considered this issue so far is a term in that a denial of impartial and fair competition among some sort of service fighters satisfies the article three standing requirement now was in applying  kickback cases based upon the denial of impartial case that kickback is unlawfully opinion by your in this case we have the fiduciary so the real world will impact is is that there's harm because the consumers should be receiving the the  service at a lower price now there's a question about whether it's market rate or not whether whether these these places could have received a better price from another service or service but we think that we think that there is that evidence here because the little minuscule report there that isn't really going to negatively impact you here the evidence is that the northrop's pocketed about one thousand five hundred dollars for this transaction just for one point over six hundred thousand dollars they pocketed from our clients over the course of forty five years right so the real world impact is hard cash big money coming into allege that and when you are when your client was asked about it he said he's not aware there's a distinction between mr bear while he's receiving the service mr baer learns that there's illegal kickback being paid just fiduciary the real stage right so clearly expressed dissatisfaction by fact that he filed the lawsuit and we went in during the testimony we actually with back and said ok when you said you were satisfied why are you unsatisfied wife that fisheries marketing money they say well that's you can't do that you can't go and clean up clients testimony well the client was confused this is a regular consumer being through into the market why do you have to shim for that and why did they tell no one about secret spreadsheets and that's because they had to deal with regulators and people around them that if they just had bags of cash showing up lake view that would be a problem they have to have an excuse in or on their own books and records to deal with the regulators to deal with anybody that might get a view of what's going on with payments flowing from the banks write anything they have to engage in some affirmative act of concealment because if they do with just reality and they say here's payment for referrals that's just admitting right away that what's the authority that they don't have to rely on a ledge on or from or to that it's the opposite there is no authority that they have to rely but that's not the question as to whether they were little where a business arrangement between them that was apparently legitimate that would've been apparently legit and the fact that they referred to them that's not that's not something that would put you on inquiry notice to to to go look for something that's just notice that there may have been some legitimate business range you have to have increased nosed notice based on red flags not innocuous facts and that's what the court did and he accepted their arguments in that regard but the i talked to just to round out again to that cover all the issues here about the issue about fraudulent concealment are not right you can see what about the disclosure of the attorney client privilege and that's important because one of the acts of concealment here also was they're trying to say that they come within the safe harbor and there saying in there and his supervisor told him when we when we had the supposedly legitimate marketing dream right was supposedly going to market remit if it was in play claim the theories are and what the facts in the record actually show and what the legal support is so the best thing to do i think is maybe start with standing your honor has already noted that there is no is that there was a loss of impartial and fair competition among service provider and that is both of legally deficient claims and  the fees were less than they paid for a house eight years that the title insurance rate was regulated there they are claiming here your honor is a claim that not is not in the complaint is not in the deposition testimony it's in a self made affidavit after the fact that says the title insurance premiums were split and there's simply no evidence to support that we have we produced northrop records were produced the only evidence is that the payments that were made through lakeview to the northrop team is on this list and there with a monthly payments to be paid under the marketing six thousand dollars in the beginning up to nine a little bit of twelve mostly settled at nine those were the only payments mr lawrence has discovered that they continue to track commissions like they did before the marketing and he had a big deposition of barbara kahn the bookkeeper about what the commission she showed and what each column meant and they may have tracked it but there is absolutely no evidence that they paid it and to be sure about it after you know a four hour deposition the cross examination to miss code was look and this is on your honor in exhibit c to reply memo in the in the it's in  appendix look at this particular commission that supposedly with ever paid no was the only payments that were made under the marketing agreement exhibit three yes and finally were any payments other than a marketing female with any other payments other than the marketing fees paid to the north no with or any payments of any kind other than that made to the north or to no and so on a summary judgment record he just can't stand up and say that if the title insurance fees were split when the bank records don't show it the bookkeeper denies it and all you have is tracking so there were no overt charges here and we go back to the degree of impartial and fair competition and the reason that that doesn't work so i say st of all the statute doesn't mention second of all the cases that talk about three so all these cases cited one thousand nine hundred and eighty two report that talks about a bill that was never an act and lo and behold you know what that bill had in it it had competitor rights of action it had percentage limitations on how much any company could do in control business those provisions never made it into the control business and it's so obviously relying on that kind of house we were to say that rest  concerned with fair and impartial competition is suspect but even if it was true it's only relates to affiliated business arrangements and not the rest the other thing that's important for me to to get to your honor is the notion of fide you share a duty which are defendants craig northrup was not representing the bears he was representing the seller whose house the bears were by the northrop team is a professional corporation it's not licensed as a broker the scope of the broker duties to paragraph three a ga to thirty is limited to representing the buyer in a diligent and effective manner to locate property available for purchase and suitable to the buyer and that's exactly what how the statute one hundred and seventy one thousand and eleven of the business professions an occupation code describes real estate brokerage services for consideration assist another person to locate or a teen for purchase or lease any residential real estate and if there was any doubt about the scope there's another paragraph in the brokerage agreement paragraph twelve in which the buyer of knowledge the brokers only retaining the person as a real estate agent not as an attorney a tax advisor a structural engineer a whole litany of of topics including the catch all of the professionals provide and consistent with all this judge quarrels when the same claim was made against long foster in this case that they owed if i do sherry duty to the buyer said no under maryland law real estate brokerage service doesn't include referring title services not so far from marling ten as the court noted in a footnote it edmonson it's possible to consider in judge bennett did consider fraudulent concealment as a possible extraordinary circumstance it's true he didn't pay a lot of says there's no cases that go to rely on hondas marling to talk about the deception having to deflect litigation that is the kind of reliance interest that we have and if the deception which is supposedly the shia marketing agreement you don't get to that in nd was never observed by the plaintiffs it couldn't have prevented from discovering the climb so the claim was it's a action designed to hide the crime if if there is nothing that precludes the plaintiff from discovering the crime there is no fortune one concealed and there is no there's no element i think it's important to look at rest but to your own rest goes a one year statute of limitations pretty short the congress intentionally not only is it a one year statute it's  congress contemplated that if you didn't bring a claim within one year of the closing you would time board now it's true that fraudulent concealments inequitable totally apply to all statute but given that this is  statute it only stands to reason that the deception has to have an effect and there was no deception there was no effect here there also is no deception let me cover that with the primary theory of deception was a sham marketing that's just a label that the plaintiff put on they allege that it's a sham that there was no record of any services being evidence is all to the contrary rather than having a sham agreement at pages over eleven to twelve of our opposition brief we and all of which is you know detailed in the in the brochures around the offices the marketing agreement also had a provision that said in addition to those kinds of services that were articulated in the marketing agreement the parties could mutually agree and decide on anything else a whether another was legitimate or grandmother and i think it i think they do i think the fact that the fees increased and the question of rest in marketing agreements and in fact in most  programs your honor in this weather are the fees debt or somebody who refers business receives is commensurate with the value of the goods facilities or services that they provide so yes we're not here saying that there is no factual question about whether there's rest the violation we are seeing there is no factual question that title insurance premiums of three thousand dollars mr lawrence said was split is absolutely no evidence of that and the bookkeeper disclaimed so the point is yes they are may be a question of whether the six thousand dollars fee the nine thousand dollars fee the twelve thousand dollars fee is just which also raises concealment it's not just that you violated arrest but it's that you concealed that you hate it and while there's this great sham theory out there there is no evidence that this was a sham also the long  foster affiliated business disclosure is a long and foster affiliated business disclosure it disclose the relationships that one can foster and with certain affiliated companies like its mortgage company its title companies and it disclosed other business relationships it disclosed the ones that long and foster had nothing on this form said that they were disclosing the relationships that all they are agents or any agent or any team had and there simply interest if they were truly bothered by the lack of impartial and fair competition the fact that they are told and this is what the record says out of the blue one day they were told they would close not only were they in this case according to paragraph twenty three of the complaint is that we were deprived of impartial unfair competition yet we never sought to engage another provider we never asked about another provide we never looked at the rates of anybody else when we were told that everybody goes to lake view we didn't say well might there be another company that could provide lower rates are lower service if you are the one that saying we were deprived impartial fair competition when you're told in this context that this is what's happening that's enough to arouse your your instincts and is force the kickbacks go the kickbacks didn't hurt them economically that may be one of the reasons that they never discovered but as i said your honor rest as a one year statute of limitations if there's no deception then and they don't find out the statute runs others say that mere silence doesn't need to talk you're not supposed to admit your violations especially human their contest have to do with me you could disclose other things the marketing agreement being you know the issue with of the defendant and the defendant why and the hotness still said that that's not enough you're not so you don't have to admit the violation has to be has to be some so together your honor  it directly they said that edwards was abrogated by their decisions in spokeo and and also the gatos case you need something more than plenty of snow and on the equitable tolling thing the absolute was no f but there's no question that it was untimely but more than that it was one comment that said in response to a question no my lawyer said i don't have to do this and i would just real quickly if i could your honor that that advice is right mr lawrence is suggesting that no way out work to say that i'm a lawyer that's worth his salt and i'm telling you there is no obligation to disclose relationships between reforming parties that aren't in an affiliated business weighty issue of article three he is effectively arguing the facts constance and is a great advocate but this is not a truck and we have spreadsheets every month being sent to mr or mrs north of home address to avoid detection being sent to their home address by lakeview so that they can check off whether they're receiving their appropriate commissions and we have e mails back and forth during this this marking agreement where they're negotiating over whether the spreadsheets are completely accurate and they say words literally words like the amount due the balance due and this is supposed to be a market agreement that has a fixed payment six thousand dollars and what the spreadsheets clearly show is that they're paying the six thousand dollars and keeping a balance and then they increase the payments the nine one thousand dollars to start burning off the balance and then they go to twelve thousand dollars and then they go to nine they go to six t nine to get a twelve and this happens all throughout and why is that happening the only only documentarian evidence that this is happening is that they're negotiating the kickbacks they're tracking each referral they're making and they're putting down all these clients closing and then we attach the spreadsheet for that july month that was sent by lakeview to the northrop's to their home address and on there you'll see a line item that has the number of their the date and the number the case number for their closing the amount of their of their full title fee and fifty percent commission to the north routine now what mr veritas is constantly saying is yes there's evidence that we're tracking kickbacks but there's no evidence that there were not paying well that strains credulity because there's a fixed payment of six thousand dollars that goes the nine to twelve why are you paying double what you're suppose we getting from marketing to track them and i'm saying and i ask her why are you negotiating with them over a balance due she goes because we're tracking the commissions do and and what that's what and what she said with with with with with good discipline your honor she said but the payments were being made in the market but the payments were being made on the market right now how were the payment how were the amount balance due under these secret spread sheets being decreased their being decreased and you can see that by the six thousand dollars payment on kickbacks that's our evidence that the payment for the kickbacks mean it really when we receive these these spreadsheets it was an incredible one because you don't find people tracking thing in this way in such a deliberate manner we can track per client when they're transaction closed we go right to the to the spreadsheet there it is and there's the fifty percent going to the north or we think it's we think it's we think that it's undisputed records it's really not disputable right the documents say what they say the witnesses that night they say we were tracking them why are you tracking them to see how effective we were in the marketing group that's an answer doesn't make any sense right what about if there was a track and then based on volume was the basis of the compensation for the wouldn't be worth what i believe that there were right they wouldn't be the smoking gun that i stand up here before you and proclaim it as a question well that in fact is the smoking gun of dissent ows it is based on volume and i am with turnip on how many clo volume i want to be very precise right in the in the case of the of the bears take a microcosm that you have three approximately three hundred thousand dollars listed that would be the volume that you're speaking about right and that would be rational to track because you want to clients you come up with a number of a balance due and then there that's the monthly then there's the yearly sheep that's kept monthly as well to where that number goes on the sheet right let's go to the northrop's and extrac five thousand dollars a year and that was just straight she would receive they were just received the entire amount there was no attempt to try to show that this is not part of your question here soko no but i think it's relevant your honor because the testimony now mr mr parents or something it's it sounds like he wants it st and i was actually in overtime following it for a while because of this is of my space affiliated business reasons i don't directly this litigation and what his position was very clearly at the district court and not as clearly today but very close was that impartiality fairness and competition is sufficient if you're dealing with  that deals with an a b a now why would that matter because if you're having illegal kickbacks particularly on this front right if you put it put together a structure to try to make it a legitimate new feel that you failed to fall within the safe harbor obviously of a he received he was split commissions with every one of this is agents whenever they receive so he absolutely was a fiduciary of my clients the the buyers in the situ as was the north a team itself