so much give everybody a moment to collect their belongings and ship way in any event i represent the firefighters retirement system the new orleans firefighters and pension relief on an industrial employee for karma system and the case arises in the first one is whether the court is inclined to make that determination absent the district court making that determination the records very clear that the district court said we're not making a determination of the issue of the reasons most of their action whether the claims prescribe so much the arguments that i want to present to the court this morning as i helped relate to whether they have weighed the coin on this the facts in this case affidavit when they raised their issue of personal jurisdiction and venue that they had no relationship with the state of louisiana and after the claim was spad they d registered lawless some other jurisdiction like the claimant because of the personal venue issue whether the counting state whether would be premature to bob the claim with the counting  accounting statute is sups and that's a big deal in terms of the way that this case has to be dealt with they made the decision to follow a claim personal jurisdiction and lacob then and until that issue could be determined then there was no way to determine whether the subject of a law that wheezy anna would be a actions took place in new york so op thought that the substantive law of the wheezy emma was not a political to the case is so up by all the action in state court now maybe the better question is why didn't they follow prematurity at that point in time it's pretty obvious they didn't want to say that the wheezy an accounting panel had any application of this because at that point in time before the ruling of this court that it was related to jurisdiction of the bankruptcy act which afforded nationwide service they wanted to take a position that they didn't have any contacts with the  period all the way from following the law also plus a time period that the action was staying while we were determining whether the all the cases would remain federal or state court the issue seventeen the district court look at the issue and term and rightfully so based upon the ruling of this court that related to jurisdiction existed that there was nationwide service and that now having said that there's two important facts that are going to the point it comes in under the that the coverage of the act is it is strictly construed court that they had no context the list goes in your stop the argument that this tour doesn't embrace that theory so for just looking at whether there was legal error as to one of five it says any action against a certified public accountant it doesn't say that that account had to be registered in the easy am well and even if it did they were registered at the time of the state act right actually that they were registered at the time that the lawsuits commence or no question about that ok so what's the best authority that says that one hundred five only applies to herm's that are registered in the easy and that it's a that it's a competent jurisdiction based upon on the personal of the issues a and raise there's no form to get to appeal it took the second issue is is that if you  ninety four ninety four eighty two it requires a notice of intent under thirty seven nine fo eight two it requires a notice of the tint to exercise the privileges well they did just the opposite they didn't read it in the reason why they were taught i'm just you since you're cross appellee on a tough issue you want to use your last three minutes the three year preemptive period as a political to anything other than oh your mouth practice action and that count in that case comes up in the context of a cover  framed court the question becomes is to whether that case would be extended to cover accounts and not just extended across the industry but also extended to facts where the alleged fraud w in the original investment decision not and once you reasonably knew from the trustees report well in the in this particular case it applies to in both houses because we still don't know  the extent of the fraud i mean the trustees will or will report that was rendered that the exhibits were not made public image you know it's hearsay and it's not admissible and really would not be the basis for the following it does deal with the that didn't exist i would add two points and and first of all that none of these factual issues reviewed by the district court and i think the court well aware of the law thought i would focus on into these presentation which have been addressed in the briefing and also been addressed in the opposing counsel presentation this morning the first two deals with the appeal and then the last week deals with the cost appeal with respect to the appeal of the two issues i'd like to focus on are this issue of a stop all and whether any a stockholder waiver or whatever legal doctrine is invoked should apply with respect to as a result of arguments suggesting that it is the obligation of the accounting firm to commence review panel proceedings when in fact it's quite the opposite it is the obligation of the claimants in this case the funds to come into commencing account review proceeding and then the show's going to focus on with respect to the cross appeal is to address the moment and the view of whether as the fund suggests moment takes this court irrevocably into factual determination zz or whether there's a simple answer here that would make it appropriate for this court's exercise its discretion to take that extra step and confirm that dismissal is with prejudice if i could turn back to the funds appeal first decision since only several of your questions off points i wanted to make the statute is clear that is the obligation of the claimant to go to the louisiana review panel this is up at station where we can look on its face and see that it in practices act when it went into briefing plaintiff relied on the easy on a law as it wasn't a situation at all akin to a potter versus when where the district court could have looked at this and thought oh my goodness this has nothing to do with louisiana failed to do so what if the accountant weren't even registered with that matter in the reason there's potentially but not under the facts of this case so first there's this substantial equivalency rule in the louisiana accountant statute and so you'd have to ask yourself do you have an accountant accounting firm that has become licensed with louisiana and still entitled to the protections of the act if it is licensed to a substantially equivalent state now the record shows that at all relevant times new york was a substantially equivalent state but having said that that's not an issue we reach in this case because it all relevant times in this case eisner was a license louisiana firm they were a licensed louisiana firm as of november twenty fifth two thousand and thirteen when plaintiffs by their repeated admission learned of their claims against eisener they were a licensed louisiana firm on february of two thousand and fourteen when this louisiana law driven complaint was filed in a louisiana state court they were license when it was removed to the district court and they were licensed the year later when the time to bring the claims the account review panel expire and isn't the answer to one the factual truth that you did let the license lapse at least as at the time the thinking that this review board law wouldn't apply so let me take them to pieces i think there's two issues in there i'd like to respond to as a concern i think the second one first did it lol them into not going to the review panel eisner made no arguments in any motion to dismiss until well after the time to go to a review panel had expired a motion to dismiss wasn't filed until the fall of two thousand and fifteen the time to go to review panel had expired at the very latest in the embers of two thousand and three so there was no law ling during the time in search of lolling i went and looked at everything that was filed in the time period that was that one year ticking period and the only filing by eisenhower during that motions in this mess and if you review that document you will see the basis that was provided to the court for that extension of time was that we were watching what was happening in the first case that what we call the sicko case the first of three related cases in the district court there are predecessor auditor i think they would say some of their issues are a little different but broadly speaking same statute account review panel the whole globe wants yes clearly going to listen to the arguments they are certainly going to  yes but let me go to that so so in that petition in that petition for time we pointed out that in sicko on the plaintiff's themselves had asked the district court to have all motions to dismiss cases we don't have here it inconsistent positions taken at different times in different cases or even different times in the same case what i'm going to file this motion to dismiss her did what parties always do in this house  motionlessness they raised all their tobie arguments at once they brief them and they laid them out and the district court took them in the order that you take these arguments first do we have jurisdiction second ok we have jurisdiction as a magistrate judge found as the district court approved now we'll go to the count review panel issue ruled on that issue never reached any of the many other arguments we raise whether why the complaint could be dismissed all that will be six arguments  callus why we don't have to re mandate if we agree with you on the main a pale why don't we have to remain on the cross appeal and the cross appeal i suspect many parties suspect few parties show up for this court until this court w daisy chain of account review proceedings and further legal challenges already pending in the lower courts stayed pending whether this court takes the issue up now or not while we reach it now as i understand the funds arguments it cannot there are two paths to deciding whether or not their fund is is their claims or time barred one pass those through nine five six zero four a sort of the traditional default path the second  go if there was a finding that they had pled enough to invoke nine five six zero four eight in which case we look to a moment to learn what time periods govern both paths come to the scene and result both discussed it so here's a question in l c if i can phrase it correctly it sounds like you're saying if there is fraud then they have to fall within a year of discovery of the fraud but i'm wondering can one look at this and read it to say that if there is fraud then the more limited statue of i'm sorry prescriptive period goes away and in fact you're back in the regular world a ten year pre contract and whatever else the prescriptive periods are and wouldn't add up to the outcome here and i agree that the first part and don't agree with the second part down and you understand the question so give me a yes i did understand the question so with respect to the first part yes you do need to go to something if nine five six  well in a moment it was five six zero five because it was the attorney no practice but whether all siver it's more for accountants you do need to go to something to find the limitations period if we can no longer use oh four or five but moment teaches you what you go to you go to louisiana civil code article thirty four ninety two which provides a one year period that's what the court did in wilmington low month the louisiana supreme court when it determined that it could no longer use the periods in zero five and a it went to civil code thirty four ninety two which has a one year period and took it and that's why i say we end in the same point regardless of which path we take if they haven't played enough to win both he then we just have the straightforward path where they're barred with one year from discovery if they have played enough certainly we follow a no way no how do they go back to what we would just call the regular prescriptive period  as you talked earlier today about the role of this court in the context of the court versus congress here and now this court is in sort of a different role of this court we're now in a world where we're not talking about what moment said because we're now in the account review statute so we're sort of predicting what the louisiana supreme court has a pretty good prediction of since it's just absolutely bogus we can clear that i'm making i guess i didn't  civically to take me back to the prods statute so i guess i'll need to read it again in light of what she said because it seemed more like we just start over and go back to like the ten year period and stuff but you're you're going to drag me something louisiana revive statute nine five six zero five easy a legal malpractise claim is governed by the one year prescriptive period set forth in l a c c article thirty four ninety seven now it's a one year claim so we could argue  for the questions on up before i move on will period and if they brought a contract action would you go to the contractual period the period you that lomov went to was one year because it was a deliberate action and forgive my pronunciation of some of these complex louisiana words but isn't if there's a contract action then don't you go to the contract area that's my confusion aloma and i guess it's a great question i haven't fraud period or does it now why put out the shorter period of nine and whatever it is nine five six zero four and put you just back in the world where contracts are ten years and torture lapsed from a jurisdictional sense and that's not borne out by the record if you examine the motions to dismiss eisner acknowledged it was registered to do business in the louisiana it did not argue jurisdictional significance of the fact that the license had lapsed in the summer thirty one of two thousand and fourteen and to be clear it would have been odd if eisner did so because it wouldn't have been relevant to a personal jurisdiction allison personal jurisdiction is now assess as it was argued by eisener in the lower court is based on the contacts in the jurisdictional situation at the time the complaint is filed you can sort of improve your law on jurisdiction by sort of trying to do things after the fact they have less contacts i believe that's a safe statement of the law but even if it's not on record if we look at ten ninety three to ten ninety four which is the peter test very affidavit if we look at ten ninety to ninety two which is the declaration of geoffrey melnyk who is the c f o at the time of  contact it is not in so i think i don't have an office there and i don't have this i don't have that then the lawyer draws the conclusion therefore there's no minimum contact necessary for a person or state in that argument exactly  revenues and billings from louisiana based clients revenues disclosed hours of work by eisner employees in the state of louisiana because that was something i tracked there were such there were not a lot of such but there were such they were disclosed and this was all in the context of and this time period making what was still sort of new arguments under the diameter a g general jurisdiction case the walton versus fiore specific jurisdiction case where we were coming to grips with that and again to in a stop a point the appropriate approach being to dismiss a claim that's filed in a court prior to the filing of an account with you panel petition but does not come to grips with any of the issues i believe that you are arguing about there's another case five lawyers i forget the one for insurance purposes but again not grapple with these difficult issues lol one was a case where once the court found that one year period the plaintiffs claim was clearly say because the client had clearly gone to court within a year of the learning the truth of the claim against her own attorney here in our case because of the repeated admissions of filed in louisiana just i'm sorry in federal district court after the district court's dismissal in this case there are now other provision where we have brief these issues again they were related to judge deck and they are before her she has administrative there are no disputed facts we can say all the facts there's no other way to come out but we don't decide facts as fun as that would be a crime if spun it was a that's the reason why they're also feel she'd be dismissed  oh actually under that argument we should send it back because we need to know is this with or without prejudice and so if there is something that needs to be decided in the district court to get to that answer i don't we have to send it back the records cleared out prejudice and the district s now i mean i guess the thing is it's if you've raised two arguments to a court and one of them gets you a dismissal without prejudice and one gets a dismissal with the question is does the court have to consider the one if they've given you the without you got part of what he asked for but not all disappointed have to consider the one that would give you the for home run versus the one that just got john second base or whatever the right analogy is well it a question on appeal somebody is complaining about that and they're complaining by saying you have to construe it as a with prejudice but let's take it your way that it was without but having asked for saying is that's a legal argument that came from their position that what we had only three clients in louisiana we did this innocent and therefore doesn't satisfy the minimum kanu you don't have the ability to bend the facts that what they say it