you can take the podium counsel here today in my locker and thomas home and as we have fully explained in our papers it was error for the district court to have granted germany's motion to dismiss the extensive record submitted below makes a more than non frivolous showing under the home or at standard to establish jurors diction under the taking exception of the foreign sovereign immunity exact section and eighty three we believe it was also clear error for the court to have the nod plaintiff's motion to supplement the record and or to amend the in that bad supplemental record overwhelmingly we suggest and more than sufficiently anon rebuttable e establishes jurors diction under the takings exception we further would like to renew our motion appellate motion before this court to supplement the record and respectfully suggest that this court's did novo review should be conducted on a complete factual record there  at least four clear cut legal errors in the court below requiring reversal and indeed each one of them the district court ignored the plain text of the fs and invented new rules of well we believe we need the commercial activity exception for purposes of streamlining this appeal since we only need eleven exception and we feel we're extremely strong on the takings exception the commercial activity exception aid to you is a more complex one we would withdraw our objection to that for purposes of this appeal to streamline this court's consideration district court in its decision it defines commercial activity as a regular course of commercial conduct or as a particular commercial transaction or act one is more than  explain what the commercial activity is that you're relying yes the commercial activity is the bone trade engaged in by them there and then sold them as part of an international trade which was extremely robust at that time for profit one of those commercial transactions for profit was the sale of twenty four it was sold for profit and those records of that sal are documented by us in response to the motion to dismiss in the declaration could two of the declaration where attached to it are the exhibits showing the actual sale of documents from the berlin museum to here for a some forty one thousand five hundred dollars that was part of a and the collection that was sold five thousand two hundred specimens including both the bones and and human remains of our victims  from this genocide but also other purchases of mohawk other indians remain from the united states indigenous peoples and elsewhere in the world that were collected in the museum it was a very profitable business as relevant here that was a single complaint a transaction there were two shipments from berlin it was the sale documents show it was one sale in commercial transaction but encompassing five thousand two hundred specimens as opposed to for example the leading case and in this circuit i think it was shapiro versus bolivia where the sale of one promis analysis of the lower court that the that the profit of the sale of the bones and the lease of lands that works procreated from the plaintiffs was very lucrative sale of those lands and mineral rights were commingled in the german treasury were used to purchase property in new york and so the only real issue before this court is  are those buildings here in new york by germany are they being used in connection commercial activity carried on by germany and we would argue that that's one of the major legal errors by the court below which grafted on to the statute a requirement that the primary purpose of the use of the buildings the four buildings that germany  year be for commercial purposes the court appears to have conceded that there was some commercial use in fact it cited a language from the restatement rd that really any  any commercial relationship is commercial activity but found even though there was commercial activity it was not sufficient for the statute because it grafted on this primary purpose requirement even though we showed that the th avenue building called the haunted castle for example here in the york that germany younes may be used for some diplomatic purposes but it's also as we showed or more than frivolously showed yes done to the lower courts sufficiency with expert testimony from an economist dr dr smith and the court had an extended analysis of that that's the part of the lower court decision we particularly like we think it's it's accurate in the court spend a lot of time analyzing that at least for purposes of the pleading requirement it was a more than there was a more than frivolous more than sufficient showing on on that particular point however the court diverted from us and found against us on the commercial activity of the of the buildings here in new york t if you want to just summarize now the argument that you're making and then i'll turn to the defend yes of course the four legal four legal exceptions are summarized before legal  activity is engaged in the plain language of the statute the plain language of the statute carried on is past participle past tense statutory definition was not followed by the court below and we would ask the court this court to reverse and adhere to the plain language of that statute thank you can see from the problem is and we pointed this out in our brief most of it is not in the complaint that they filed nor in the amended complaint for example with regard to the question you asked about commercial activity with the complaint an amended complaint alleged that this professor vonn lucian his widow some three years after he died i donated or so old the skulls that he mentioned in the bones to the museum in new york that was not an act of germany that was a private act by the widow of the professor who during his lifetime had collected these the first go to  his workplace in the museum he dies and his wife either donates or sells them to the to the museum in new york without the interference of the republic of germany that is correct now that's what was alleged this is not this is not our facts that's what's alleged in the complaint and the amended complaint after oral argument before judge swain the  plaintiffs sought to file a supplemental filing which judge swing didn't allow because one it occurred three months after oral argument some two and a half years into the case after the filing after the filing of the original complaint an amended complaint and she found that it was undue delay that supplemental filing that they sought to put in the record and was not in the record that judge swing decided this case on it doesn't add facts it contradicts directly what they said in the what they allege in the complaint so this isn't filling in the  borders with with some facts that sort of elucidate it's a direct contradiction of what they alleged in the complaint the basic problem that i have here and i had it in reading in reading their briefs and hearing argument this morning is what we have here is a homogenization of the record that we was before judge swain and facts and things that they sought to put in which aren't in the record and they are alleging that judge swing made error but on the record before her she decided this case correctly there's no question about that but they claim that she abused her discretion in denying  the right so the chronology of that is that this case was filed in two thousand and seventeen about six months later i believe it was an amended complaint was filed we went through two full briefing cycles on germany's motion to dismiss we had extensive oral argument in july two thousand and eighteen and it wasn't until october of two thousand and eighteen presumably in a time when judge complaint to full briefing cycles and then three months after oral argument a motion to supplement she found one that the material that they sought to supplement was a vailable to them from for decades that this wasn't quote newly discovered or information which was heretofore unavailable this was available judge swain found to the plaintiffs for decades and given that chronology and the fact that all this information that they sought to put in three months after oral argument had been readily available that she found that to be undue delay and she did not abuse her discretion in denying states real estate you're initially claimed by the plaintiffs was that there were four pieces a real estate in new york which were which in which germany was engaged in commercial activity i think they've dropped three of them  we're down to the th one which is what mystic mccallion referred to is the haunted house it's a property on th avenue that property judge swain found based on their allegations is use for promoting german culture promoting german tourism there were some commercial contracts laid on that property for the rehabilitation of the building and judge swing correctly found that the law is that that ancillary commercial activities such as hiring janitors hiring contractors is not under fire that required commercial activity nor is the german government use of the building to promote culture and trade that also the case the case law which we said in our brief is not the kind of commercial activity that satisfies the requirement under  what is required for commercial activity well for it for example at one time germany operated lifton's airways and if they were engaged in selling airplane tickets in new york to fly on that airline when they owned it that would be commercial activity if they use that definition for profit or what's the standard that you're articulating and where is it found in the well it's not it's not it's not  specified in the statute the statute says carried commercial activity carried on and by the way just let me hesitate here a nd to say that we believe that the statute when it uses the term carried on it's a requirement that it has to me commercial activity which is currently being carried on not commercial activity that was carried on in  twenty four what about do any of the case suggest you interpret well to suggest the interpretation that i've asked you to consider is that the nd phase of the poland said that the standard for commercial activity in the st prong which is that which applies to foreign sovereigns is a higher standard than that which applies to agencies and instrument and from there i hype i suggest to you that that if it requires current commercial activity for the lower standard namely the agency or instrumentality the  you have not said exactly that in a case is the correct excuse me we have not said that exactly no observer haven't said exactly what you have said is that the standard to hold the foreign sovereign under the expropriation exception is a higher standard than the one to hold the agency or instrumentality so that's what you've said and from there i extrapolate out to what i suggested to the co today i'd like to spend have a minute one thousand left i'd like to spend a little bit on this we have asked the court or suggested to the court that there is an additional ground for a the ruling by judge swain that there was a tracing of the money and that money would be like that part of her decision they love that i frankly thought that well i won't tell you what i thought but but he here's the point about the tracing we suggest the esta court to take judicial notice of the fact that germany went bankrupt twice at the end on th avenue and that building is simply wrong and if you think about that the vice it would mean nothing if for example any time there is an  expropriation and the country that expropriated owns real estate in the united states if that is sufficient in and of itself to show we're tracing then faisel means nothing what i would suggest is that while tracing is a viable theory in this case that's all it is is a viable theory there was no showing of tracing and i suggest that judge swing should have considered the fact which is public noticeable in germany lost world war one and went bankrupt lost world war two was penniless and that to say that this new property in the st century in new york can be traced to the taking  of the plaintiff's property in the eight hundred and eighty s and early one thousand eight hundred doesn't wash so what i'd suggest to you is if you look at the record that judge swing had before her look at her opinion and keep that in mind as opposed to all these ancillary matters that infiltrated their brief in their argument you will find that she made no error and that additionally the tracing argument is an additional issues in dispute which on a motion to dismiss should have been resolved in plainest favor with all inference drawn in our favor and he keeps saying that the plan has failed to prove this failed to prove that we had no this collection of bones that was sold by the museum was in the possession of the museum so when mr harris says well it was just they thought said originally it was a private collection we never said it wasn't in the possession of  the german museum but this just highlights a factual issue in dispute which cannot be resolved at an early pleading stage certainly in the case is important is this one of genocide a genocide case there should be at least the application of the burden of a more than non frivolous argument certainly the ultimate burden the case law is clear that the ultimate burden to prove that an exception doesn't apply still lives with germany and when mr harris says that there is no definition of commercial activity in the statute as i said in our papers and in my shows the nature of the activity defines commercial activity not for profit so there are all kinds of requirements that germany says we failed to show which are not required by the statute or grafted onto the statute also it's clear that delay this court and other courts delay is not a significant in is an insufficient grounds to deny a motion to amend there must be a showing of significant we suggest prejudice to the other party and when this court weighs the equities here we have the basically marginal inconvenience to germany of having to brief another motion on a full record versus the prejudice to the plaintiffs who germany has admitted are the victims of mass murder and genocide being having no judicial relief clearly we think that weighing of the equities the layer is not sufficient we corrected the record yes in the original amended complaint we said it was a private collection that's what an expert had told us but the and then we found out through further research that this was a collection by the berlin museum and really the shame of this is that they've never denied that this museum they don't deny it they wouldn't deny it here they don't deny it in their papers and yet the court imposed a hyper rigorous standard on the point of saying oh we didn't prove that it was a state  a result the decision by the court below was made under only a space it's a fact we proved in our supplemental record overwhelmingly that it was sold by a german state music museum that on its face was more than a non frivolous showing we also had documentation relating to that then we offered a nd amended complaint correcting that and other things and mr l n submitted a very extended scholarly supplemental declaration meeting all of the filler standards under the filler case stablish ing why the state museum was a instrument of the german government and also we would respectfully suggest that the phillips case in the d c circuit germany actually admitted in conceded that the parent umbrella organization of these berlin museums the pression cultural heritage foundation was a german instrumentality they haven't denied it they can't deny it certainly you can just go to the website and see that and yet are thrown out of court below the night any judicial remedy based on facts i will findings without any fact finding hearing without any discovery in this case and without the application of a the clear basis should we be thrown out of court should these people be in i'd really it's your court said you had this information for a long time that's not hypertechnical you're supposed to bring all your information to the court with your complaint and you were meant to complain she said you knew of this before before you submit it for three years she said oh well she said we could we could have known hour two thousand and seventeen was the st time all the experts and ethnologists and others they didn't know the bones of our victims were in the american museum of natural history they didn't know about this transaction until two thousand and seventeen we had filed our original complaint based on that information we filed our amended complaint we went to the museum we looked at some of the records but because of the controversy in this case we were then excluded from researching the issue so the court made of a finding that we could have in some theoretical sense but nobody had ever found it not the experts in germany or anywhere else knew that in the basement of that museum that wasn't on display were the bones of of the plaintiff's ancestors until two thousand and seventeen when we started our research i mean we there have been a whole acoss cases before this court where seventy years after the end of the whole it cost you know what some records are found in an attic certainly not in the whole it cost genocide case a court would never exclude evidence which is which is found seventy years later could they have cleaned out their addict and done spring cleaning you know for seventy years before that sure they could but we live in an imperfect world and there was certainly no bad faith and there was an effort by plenty plaintiffs and soon as they could to have volunteer lawyers that volunteer experts try and get to the bottom of this the bones in the accession records were not on the internet they're in the basement and we can only get to it if the museum allows us to go there this is these are not public documents so the court imposed  more than hyper technical requirement rigorous standards on us when we came up with evidence we corrected the record we supplemented the record and met all of the filler standards for the definition of the state museum and also germany's bone trade so we suggest respectfully suggest that equity and elemental fairness require that this court which is mandated to make a noble review because the court found that for example are many complaints it would be  futile to follow that because this was a private collection rather than public despite and we're going to exclude we're not going to look at that record this court can make a review on that file some record at this particular point