if i may proceed in a good afternoon and may it please the court if the court prefers if i would be allowed to reserve two minutes if that would be allowable by the court the case before you is a fairly simple case involving two matters that are consolidated both of them from orders coming from the district court in arizona one is from the middle of two thousand and sixteen one is from the fall of two thousand and sixteen but while they involve different people they involve the same defendant and i will explain the involved the same pattern and practice of conduct by the defendant that led them to file suit both individuals whether we're dealing with philip and tanya man who live in philadelphia or sergei celie have who lives in los vegas we have individuals who had come in to information in regard to swiss america and the products that they sell so what would happen is in both situations and it set forth within their affidavit testimony they would be they would hear information and they would follow up as to what they could do to capitalize on frankly what was advertised as a clear investment opportunity in both situations what would happen is there would be a certain amount of products that they would buy for instance with the man's they originally bought silver coins and bags silver and these are are fairly pedestrian investments and then they would be counseled by the representatives at swiss america into buying things that involve collectible or numismatic coins and i want to be very clear there are and i'll admit i'm not an expert in coins but there is a clear distinction your honour's between the bull yana in general gold coins and what's called collectible or numismatic the first is that in regard to the way that they were sold to these clients in this case whenever you have the general coins of these general products unlike numismatics they may not be in your possess these me may be things that are held with the treasury and what happened in these cases was these individuals were told these individuals were told wait there could be a downturn where if you look back to the roosevelt years of for instance nine hundred thirty three then what happens is the court i'm sorry your doctors the government baby allowed to take those materials and what you can do to make sure those things don't happen is you can make an numismatic coins so that's one part but there is more to it than that in addition it was told that these things could increase in value down the line now there is a clear distinction in this case that i feel is the focal point you honour's of this matter and that is this who we are dealing with fraud and this was addressed by both judge silver and this was addressed by judge field work when you are talking about a fraud case there are two characteristics of statements that are not going to be allowed to be considered now the first one is going to be where you have someone talking about the future of events for instance if you say listen this stock is going to appreciate in the future if you say this is going to fall and this is  investment at this time that's exactly what you are doing is prognostication or prediction the other side is when you have an opinion if you are just giving an opinion about what would happen then that cannot be allowed for fraud and i focused on the fraud in the briefing your honour's in both matters because of this so it was a false representation it was that when you go back and look at the historical situations it's based on the history it's whenever you have to go back and look at the fact that the government can come in and do these things as the basis for them doing it again in the future it was a creating a sense of fear your honor that here's a situation where that it was a false representation as to past events it was yes it was his torkel and it was a story because it was something and i think the case law is clear that it must relate to either and and i would like to if i could bring up the arnold versus the so arnold associates versus i believe it's p see health care systems two seventy five fed subsecond at ten thirteen it must relate to either a past or an existing fact and but i'm saying as a matter of historical record that and i understand very well what the court's asking is what was pointed to in the past in order to say you look at that and that is false and what i'm saying is the way that that was used in the past was that it was saying that those were instances to show that because you could have things confiscated then that it could be confiscated now in other words what you're doing is they're basing their actions on something in the past and that was very important because this is much much different we're not are you saying that if you have your base representation on something accurate that happened in the past that's a false representation but the point is well taken by the court that you could point to something in the past and then then you could very well say ok listen that is something that actually happened but it wasn't used in that regard what it was used for your honor was to say that because of this you need to fear this misstatement as to a future event because what you're doing is you're saying that you need to get into the type of corn that cannot be which is a commemorative or a numismatic coin your honor that cannot be confiscated in the future because of what happened in the past in oh how does that differ for example from someone saying during the great depression these forces came together in the economy collapsed and we think the economy's in a broader recession or are they in the great depression and stockbrokers as you know because of these facts i think you should get into this stock because i see some of the same things happening again and that's not act different when you are and i think i can draw the distinction just thomas is whenever you have something that you are using to say if you look back at this performance then based upon what  we need to have that same performance story or a different course of action in the future because this cycle could reoccur what happened in this case in in my humble opinion rather i think the evidence bears out was a little bit different because what happened was they would say based on that they were placing them in fear saying that they should do something that was at put them at a complete financial disadvantage specifically being that they would have to invest in one case by selling the coins back in other cases by spending more money on the coins they would have to invest in something that wasn't going to be as advantageous out of the fear that something would happen they or that based on past performance the increase was going to be significant and that they would be financially justified in doing so judge thomas and that's a distinction that i'm trying to draw between those if i didn't artfully i do apologize to them but we move to breach of contract for about what provision the contract was breached the contract your honor was breached because they were they were it was represented that they were going to be getting a certain type of product that they simply did not get they did not get something that if i'm going to  to purchase a certain product with an understanding that it had certain value or characteristics are and in fact it did not it wasn't that and i want to be very very clear on this if you think you're focusing on the representations that lead to the so what's the breach of the contract the it wasn't that they said here is one particular coin that you're going to get this from one nine hundred thirty eight and it's actually from one thousand you know fifty four it's not that it was that and  if i may your honor just to just to describe it a little bit in the in the evidence in the man matter when tanya man had actually gone back and she had looked at the values of these these different things that she was getting and they realized all of a sudden these things don't appear to have the value that we were told they did they went back to a gentleman whose name was richard cromwell and i want to be very specific that we've got two different matters going on here one is silly of one is me and one involves a gentleman named mr cromwell and one involves a gentleman named mr spore and in both situations both these individuals were looked to by respectively tanya and philip man and sergey silly of who has the companion matter and they both were told as to what the  skyrocketing value was going to be they were both told us to the characteristics and the values these things were going to have and so you know part of the contract i'm sorry was a part of the contract i certainly think it was inherent within the agreement between an they are the exact same thing it's literally tied into you thinking you're going to get a product of a certain value and then such as again in the tanya mann matter finding out that it's not of that value would you agree that there is no express case i certainly think that it would certainly be more of an im i guess you could say an implicit warranty situation your answer is yes i would agree with that i i'm trying to and please forgive me i'm trying to keep the causes of action distinct and i'm also trying to draw the distinction between the man case and the silly of case it may i respond to something else though your honor there's there has been in regard to i want to bring out if just few bits of information they had brought a you'll have to apologize i do have it more i wanted to get to i it's not lost on me that they brought a motion for dismissal and they brought a motion for sanctions the dismissal has been resolved already by the court and i wanted to bring up some case law on that because i didn't want to get to the end and then not have not have drawn upon that in the negative versus i'll spot case it talks about preserving cases with the courts that have merit and i think it talks about  case versus the county of los angeles from one thousand nine hundred six on the ninth circuit talking about matters where there is no affidavits no depositions and frankly there is no evidence to show how someone was wrong or no evidence to show how someone suffered financially because of representations that they had relied upon and i want to be i want to be very clear that if you look if the court would look at both the representations in the affidavits talked about by mr crumb well and if the court looked about the representations in the affidavits by mr spore that will be and i'm not talking about the people who wrote them that those were the appellant's but in the actual individuals who were represented in those instances your honor mr spore and mr cromwell it was the same exact pattern of getting someone to make a purchase and then in the new varying them into something that was less advantageous to them and i think that's very telling in this case and frankly it shows a pattern that we're talking about so frankly i see that i'm down to about two and a half minutes going to be there if the court would allow me yeah sure do i need to keep track of it  you know lawyers don't like to seek sanctions against another lawyer we worry about it may be us next time we worry about maybe we'll reduce the standard make it easier to get sanctions but your honour's if there was ever a case that calls for sanctions the conduct in the briefing the conduct today justifies it the in the normal case i would come before your honor and talk about the elements of the of the appeal we talk about the law and the facts but there's nothing to say because there's no appeal here he filed in the pills brief but i have yet to hear what the points are that where the trial where the district court made there it comes down to the very basic question to ask your honor what was the representation i have to tell you how frustrating it is as a trial lawyer and an appellate lawyer when the complaint doesn't tell me what the representation is where i take the depositions  of the plaintiffs and they don't know i look in the summary judgment and say well everything that says is not actionable and i don't get back even the statement of facts and then we get in the peels brief where we don't know what the representations are and now today your honor asks what are the representations and i have yet to hear of them have yet to hear where they are where in the record they are or how i can deal with them about whether their opinions whether they're about future facts or all the other things that make representations and actions not actionable and the frustration is even today when i heard was something about historical historical basis well that was never in the record below your honor to my knowledge there's never been a claim that there are some false statement about some history that was made for example that is true that so assume erica talked about in its literature the gold hundred thirty three well it didn't happen and whether that means it might happen again is for individuals to determine but there is no false representation ever made or made by swiss america and for it to things and not just to ignore out of for one of a better word stupidity or a lack of knowledge this kind of ignorance is it is a dangerous ignorance it's reckless because what you've got is the number of times this man has been told what's going on and yet he still does the same thing including when he appeared before you today your honor one particularly significant example is you read the briefing in the first case the man case he files from grief that never one sided to the district court's decision doesn't cite to the record but cut and paste  judgment in the proceedings below he did that that was pretty bad very bad and so what do we do we file a motion for sanctions a motion to dismiss and the response six or five months later he f another brief the brief in the second case and was the exact same thing after being told at least nine rules that he violated before this court he had nor them after being told to file a the basic principles side in the record and tell us what the representation is he ignored it and i could go on your honor but the point is that our client swiss america deserves better it is a reputable company it has been business for many many years it has fifty thousand clients it's never been sued except for by that felon this law firm because they put out an out saying if you've been defrauded by swiss america call us and they filed three suits on the same day i know a lot of that doesn't have to do with your sanctions it is in the record though and so what do we do is counsel representing a company that did absolutely nothing wrong does valid business practices sells a real product for a real price agreed on when we come to your court and ask for the sanctions that need to be made here we ask that you send a message to this council and to that this isn't conduct that should be allowed we've given you the legal basis whether it's honor i don't have a lot left to say but if i may use remain in my time for the first from the very beginning on this and forgive me i was not the attorney on this at the outset and i understand that there have been other cases filed but i will say this and i know it's a matter of just me speaking to the court candidly but it it i understand i do defense work a long time and understand the frustrations are there was no intention here to cause anybody any problem we have we have actual in the orders and i want to go ahead and bring this up because i noticed the first thing that mr martin said was i don't recall ever bringing or ever seeing anything that actually said that we're fighting here about any historical precedent or anything like that i want to be very clear if the court would look in the record at page thirty and i believe that's going to be it's going to be part of an actual statement of facts of the actual defense to the offer from them i wan say it's on thirty and i had down lines eleven lines twenty four through twenty six your honor and it was in regard to that nine hundred thirty three second of order i'm not trying to rehash the stuff that judge thomas that we got into before about the the discussion about rip misrepresentations i was just saying there was absolutely a in this case there was absolutely references made to that historical or  the the past years of what they were getting these people to look at to use it as a fear tactic to change how they did things at the present day and i also want to bring something else up they were very specific and i'm and i'm trying to go over my time  on they were very specific about whenever you have the appeal and bringing up the issues that would be looked at on appeal we had been said specific from the beginning about it's a over standard you look at it you look at it fresh there had been case law i know the the very end to this case i think the lawrence vs department of interior case all those matters it said it's an over standard of view but then when you go back and you look at the deeper issues such as when they were claiming the sham affidavit and things like that the law is clear and i'll rely on the briefing on this that there's a presumption against those kinds of things in less there's just some inherent unfairness for a example i know that  in the case involving school district i believe it was school district number one j which was a case that was cited from the ninth circuit in one thousand nine hundred three i'll just say this real quickly that had said that  that type of the sham affidavit application should be applied with great caution in this case i'll leave it with this they had a statement of facts that had said specifically here's what happened i think the  testimony from the people in their depos in their affidavits was why it happened those are the exact things that and i sent a letter and of apology about the statement of facts those would have been the exact same things that would have been included in the contested statement of facts nothing more there was nothing