well move on to the next case c d p b versus r d legal paul you're there ok this is a deal you might have to go thank you your honor so i'd kristopher a deal for the consumer financial protection bureau i'd like to discuss the bureau's appeal in this case before turning to  legal is purported cross appeal in light of the supreme court's decision in say law this court should reverse the dismissal of the bureau's complaint the district court dismissed because it concluded that the removal restriction in the consumer financial protection act was supreme court reversed on agreed with us on severability the question is what happens now and the answer that we put forward in our briefs and which our d did not dispute is that the case should be remained it to let the bureau pursue this action under the years after the date of discovery here the bureau along with new york brought an action within the required time period and nothing in the consumer financial protection act says that the bureau can only satisfy the statute of limitations when it's led by a director who occurred only well after this case was in this court and only after the supreme court's decision in say law but as i mentioned before i don't think that the court even needs to either this court or the just report even needs to get to the question of the validity of the rat ication because r d has waived any contrary argument by failing to rebut our arguments in our opening brief that in the event that the provision was held unconstitutional and several that the right answer was to to allow the case to proceed the district i did talk about the case in but only the ratification by the acting director is that correct yes your honor there had been an earlier ratification in this case  under the leadership of acting director mulvaney there's a chance to consider the ratification i the new permanent director director because he can now be removed like just two very quick points on that one year olds will be six resolutions right yes your honor i think that was going to be my from my st point that the court doesn't need to address those issues here on  this on this appeal those are just issues that the court could consider in its discretion but we think that the better course it is not to and i said i'm out of time but we'd ask that the court allow this case to be judgment dismissing the state's claim should be dismissed diverse st and the case should be remanded to the district court to proceed on the state's claims with respect to the state's appeal are the legal of knowledge and its july nd twenty eight a letter to this court that in light of seal a law there is no constitutional barrier to the state's federal claims going forward accordingly i plan to focus on artie's cross appeal to the state agrees with the c f people that this court should not consider are the legal claims and will rest on our briefs for that point unless the court has any specific questions on the merits the state's claim should go forward under both federal and state law because the state has adequately alleged that the cash cash advances that r d provided to members of the n f l and nine hundred and eleven dollars settlement funds were loans and  assignments rather than low as this court and new york courts have long recognized alone is essentially a contract in which one person transfers money to another person in exchange for a reasonably secure promise of repayment at a later date  has has far exceeded its burden and explain in advance in pleading that these were loans and extensions of credit and the reason why is because at heart what what as the complaint makes clear the heart of these advances was that argue promised to give consumers cash now in exchange for a promise that they would repay r d a larger sum later that is the basic structure of the loan and the agreements here had four other features that indicate that these are really loans for features that i'd like to highlight the their hands a war letter saying you will get a specific amount of money and r t was careful to only offer our offer advances up to a small portion of those full awards so even in the very unlikely chance that the fund was not able to cover the entire award and there's no news nothing in the complaint that suggest otherwise in fact the complain a lot a lot as it was very likely that these awards were going to be fully compensated it was still the case that r d was extraordinarily likely was like except with the with i would point out that there that the world is a little bit different now because we also have a state supreme court decision making essentially the same judgment that the district court did below on the question of of the nine hundred and eleven fund saying that in the in the state case the state at raising very similar claims the state had at had adequately pled that what the these advances here were essentially loans and so should move forward to discovery the for the purposes of allegations of misrepresentation as well as allegations of as well the allegations of state state us that leaves two overarching issues that remain that should be decided in already legals aber because both of those issues are guided by controlling first under binding supreme court precedent and as the district court already whether ratification doctrine applies at all to the separation of powers an issue that's a play here and what the district court said is ratification is an issue of agency law that's the same whether it's an acting director permanent director and what ratification requires is a principal who has the authority to act at a given time and it ate an agent order to act for that principal who doesn't happen or what the district courts that is that law isn't it that at the time of ratification the person has to have the wordy what makes sense otherwise really aren't you going back to the nd restatement your honor it relied on under a restatement to come up with its formulation of the meaning of the ratification doctrine doesn't take it out of the concepts that is the supreme court stating what the law is the supreme court's statement if you're running on us are you that was just that was a meaningless gesture that's when it takes is time barred or when there's an appeal after the time for appeal has elapsed and both of those situations apply here this case was filed in february of two thousand and seventeen there is no need to remain on the case to her to ask the court to decide that a ratification that happens in late two thousand and twenty happened more than three years after the statute of limitations i mean that would be an exercise in futility  but the merits of this case whether the allegations are sufficient that's something this court should addressed as well because those go to your questions of law this isn't about what was alleged in the complaint if under mental error in the district court's legal reasoning that the entire assignment provision functions to transform a sale agreement into a loan agreement that's the primary theory alleged in a case that's not based on factual issues it's a it's about a legal conclusion and there's one hundred years of precedent that says that's not the law if the federal assign it what i said look i read i read how can we be expected to make intelligent ruling in that time tax without a developer record they differ court did make that finding but it made it at finding based on a j didn't make any of the factual issues findings that you're talking about because those aren't in the complaint it was surely a legal conclusion and not legal conclusion is wrong the rd circuit already came to a different conclusion sales agreements and usury laws don't apply the sales are great and so you say i think it's not you know it's the absolute take it doesn't convince me you may be right at the end of the day but i need to know more briefed and has before this court and that the district court ruled on completely and got it wrong that's in sorry so so so in your fellow players entitle to a fifty thousand dollars settlement from the fund you entitled to that but are would just like to see that spelled out and documented so i'm clear that that's a really good sales and not a use eeriest loan is you know this is the facts  not true and all you have to do is look at the rd circuit's decision here and these contracts and what the rd circuit explained was that the this settlement agreement the n f l settlement agreement wasn't even finalized until january two thousand and seven and that was after all these contracts were entered into this complaint filed in february two thousand and seventeen and n f l players couldn't even submit a claim in till march of two thousand and seventeen when we were already into this motion to dismiss there's nothing in the complaint that says the type of transaction that you're referring to with the n f l pap and at all it's not in the record and that's because the district court reached its conclusion not based on factual allegations the district court reached its conclusion based on a legal analysis of the federal anti assignment act and the meaning of the anti assignment provision in the n f l concussion settlement deal and the district courts want to pick up on three points related to the bureau's appeal st in terms of the district court's initial consideration of the ratification that was done under acting director mulvaney i think when you read the district court's decision it's clear that the district court is basing it on basically two factors which are no longer present as i think will member of the panel mention before the circumstances of have changed and so i sat t temporarily leading the bureau and that at a future point the the bureau would be led by a director who was removable only for cause and that also led to the district court's a conclusion there with respect to will so there couldn't you don't even really even need to think about ratification with respect to the effect of the bureau's notice of appeal because there was no constitutional issue with that with that notice even under theory with respect to the issue of the bureau's authority to act at the time when it did if if you do take that as a requirement on r d s approach i would point the court to th circuit's decision in see if you be versus gordon which deals with this issue extensively and explains that in situations similar to this the bureau had authority to bring an action even when there was a constitutional issue in article two issue with the bureau's leadership and i think that my time is up i'm happy to answer any other questions that the court might have simon act and they knew that when they entered these agreements that that was prohibited for them to step into the shoes of these consumers and make any demands against these funds or make any subsequent assignments in kelso references the n f l the  rd circuit's case in the n f l group but i think that's actually very harmful for their case because what the court said there was the anti simon provision in n f l invalidated any true assignment in these ingredients and what and what's left you have to look at sort of from a on a case by case basis you look at the facts and it could be that what is left is loans or some other agreement but any actual assignment that is precluded by the effect of the anti assignment provision and when you look at what we have here it is the structure of a loan it is i give you cash you give me more cash later and doing it when there is almost minimal risk for r t that it will not be paid because the consumers have their award letters and hand nd r t tries to make this seem really complicated that there are these factors and it's about assignments but the case law is clear legal fictions don't matter the fact that they labelled these assignments do not matter the case law is clear that you must look through the at the substance of and as what we have here is an agreement to for cash with extraordinary high rates of interest that were potentially user user it user areas and should be allowed to go to discovery and three is that the state is just a reminder that the state claims are here regardless and for the purposes i view a motion to dismiss we should get discovery because the complaint has raised at least plausible claims that given the minimal degree of risk and the basic structure of these agreements there was something going on that these were plausibly sham transactions and there should be discovery on that point i think you're going t