honors this case presents the question of whether the district court erred in dismissing cygnus causes of action as time for we submit that the answer is yes for two independent reasons st of st of all signals equitable claims which include unjust enrichment and arista were not time barred because under connecticut law equitable claims are not subject to a rigid application of schedule imitations but are instead subject to fact based germination plaintiff equitable claims are time barred if they are based on the same facts as its time barred legal claims in our view the labs are incorrect st off the connecticut supreme court's two thousand and nineteen decision in reclaim and is clear the timeliness of the book claims is not subject to a statute of limitations but rather to the equitable doctrine of latches reclaim and did not limit its holdings in any way and so we submit that that holding controls here now that apple ease your honour's offer up a different interpretation that reclaim it somehow applies only to purely equitable crease and that in cases like this where a why we believe that interpretation is not withstand scrutiny which i which we've discussed in our papers i'd be happy to elaborate on air but even if we were to assume the apple e's interpretation be correct and assume that certain underwriters controls cigna equitable claims would still not be time barred even under their rule because the equitable and legal claims are based on different facts that a courts have made clear your  honor that where a plaintiff legal and equitable claims depend on proof of different facts the statute of limitations a plausible legal claims do not time bar the plaintiff little claims that applies yes or understanding if i if i might on claim to not put it another way unjust enrichment claim could survive and we could still prevail even if we lost on all of our legal claims because the portable claims do not require proof of men's rights we don't need to prove that the last acted with fraudulent intent that they acted with negligence or any intent for that matter as long as they submitted claims and were paid for claims that were not covered under cygnus plan terms our legal claims here were for fraud that was a misrepresentation conversion and civil theft and in that instance run on the legal claims that we've we've cited here those would would not depend on the plan terms because that the basis for those legal claims are the are whether or not the lab submitted intentionally or in some instances negligent false misrepresentations when they submitted claims to sickness that could be decided independently regardless of what the plan terms let me give you and i get another example that the fundamental fundamental instance here of what we're relying upon in terms of planned terms is this concept of  aid that's in our view the the lab submitted claims while not billing patients cost or obligation they could have done that your honor totally innocently and the claims could have been completely done with out any type of fraudulent or and legit test but if those claims were submitted and in fact the labs for whatever reason did not build the patients their c obligations then in cygnus view that is in violation of the plan terms and therefore if that labs despite our as we did a cigna asked for those monies back if they retained them that would support a claim for unjust enrichment even though it might not support a claim for fraud conversion theft or negligence this stage that to go back to judge brown question is the fundamental distinction between the factual honour's that we're not relying upon equitable tolling we are claiming that the claims were actually told during the pendency of the two years and one month of the last claims were pending in florida we believe  that the current claims arise out of the same transaction or occurrence that was the subject matter of the last complaint in florida therefore they are compulsory and in fact if we had tried to bring these claims while the florida action was and then it would have been dismissed on grounds that they were compulsory to the florida case because in our view these claims were told during the two years and one month of those claims were pending we believe that all the signals claims legal honor mentioned that because we think one of the problems in the district court's opinion was judge hall correctly noted perhaps that state law connecticut state law claims law applies to abide by the district court and at the very least we believe that that was fair we believe that the federal told in principle had that correctly been applied would in fact have actually told signature federal claims in this case so i figure out of time and let question as to whether or not we delayed it and sort of sort of brought it in time but we're not relying upon a polling we're saying that our claims were actually told our position is because they were actually told it doesn't matter as long as we file it was an within the  couldn't you have just gone your adversary and said please told the statue of limitations and if they said no or were planning to invoke it was cool it would have dismissed your claims if you three year clock caused its way in that period and september two thousand and seventeen so yes your honor we would have believed our position is that we would have then had three years since september two thousand and seventeen to file we filed in i believe august two thousand and nineteen so we were well within the three year limit so even if you even if the even if the tooling worked in a different way you still would have had one year after the court scott here representing the laboratories and i'd like to join my friend mr cannon thanking the court for its time today let me begin with the questions that judge brown and judge jacobs raised at the end of this argument and judge brown is exactly right there is nothing that stopped a signal from filing what it purports to be its own claims at any time contrary to mr cummings argument  the lower court made that same observation and indeed cites to a southern district of new york case peaks peekskill sin city school district against colonial surety in which the southern district of new york lays out exactly the procedure notwithstanding the pendency the southern district tells us of a motion to dismiss the best practice would be for the defendant in the original case the file its own claims as a separate lawsuit judge brown is correct cigna could have done this at any time and it simply chose not to judge jacobs is correct that it could of warned both belt and suspenders  by asking for a toll with him with respect to what it identified as its alleged claims there are other reasons why the compulsory counterclaim argument is no panacea for cigna starting with the fact that these are not counter claims these are claims brought in their own right and in the st instance add to that your honour's that in connecticut is the armor decision teaches there is no such thing as a compulsory counterclaim nor does a counterclaim relate back to the date of filing of the initial complaint there is no tolling council and let me ask you this i mean if one could he seeks a declaratory judgment that they don't o sum of money and the other party wants to collect that sum of money why isn't that account decline that's exactly the scenario in the peekskill case relied on by the court below in that case whether it could be brought on an appropriate time as a counter claim does not preclude the independent cause of action for declaratory judgment or other relief and in fact if a party wants to preserve its own claims during the pendency of its motion to dismiss and potentially appeals from a motion to dismiss there's a simple way to do that the simple way to do that is simply by filing those claims cigna chose not to do that there is a backup strategy judge jacobs you're correct it a tolling agreement cigna chose not to do that there is another hurdle that cigna cannot overcome with respect to its tolling argument and that is i think is the fundamental issue in this case and that is this is a certain underwriters case this is not a we're claiming case as the court below found exactly as in this case  certain underwriters brought both legal and equitable claims arising from an alleged insurance fraud exactly as in this case those it legal in equitable claims were predi eisley the same facts included like this case equitable claims for statutory one thousand conversion and unjust to the richmond just like this case the plaintiff in certain underwriters waited more than four years after the date knew or should have known of the alleged fraud or its filed its claims and the court below found as just in this case where both equitable and legal claims arise from the same underlying predicate facts the equitable claims are governed by the same stacia limitations the holding is certain underwriter's is consistent with long precedent  applying the stoute the statute of limitations to the equitable claims now cigna has argued in its papers that the connecticut supreme court overruled certain underwriter reclaim the city and it did no such thing the very st sentence of reclaim and indicates that the court is addressing quote a narrow issue relating to choice of law as between deciding factor is the claims that were clad or could have been pled uniquely in a claimant because of the innocent basis for the alleged overpayment there was no tort claim available to the the only available claim whatever it chose to play the only available claim was the equitable claim for unjust enrichment there was no hint of misconduct that's not the case here and in fact  eleven before this court cygnus pre argument statement at page three identifies the nature of the case being i fraudulent billing scheme signals opening brief a page six references a scheme to defraud and given lengthy statement in paragraph one hundred twenty six dollars of the complaint which is found in count one a cause of action for fraud and is expressly incorporated in each of the remaining seven again that's not the claim that cigna has brought but were it to bring so word to bring that case the question remains can this case and including the arista count be uncoupled from the remaining depends on entirely separate facts and he references the point and terms the problem for him is that's not the case signify don't signify all the case including a terrific claim that points strictly and innocent overpayments it would have soley that that equitable claim but again that's not the claim that a brought and it's a risk a claim like all of its other counts is permeated a prior decision has to be explicit not implicit or subsequent cio and i can report to the court after all of the briefing was completed in this case the connecticut courts continued to look at this issue prior and certainly if we have stablished fraud that would support all of the causes of action but that's not necessary to prove that recess or the unjust enrichment claim and in fact that's exactly flies the  connecticut court in the land your decision in two thousand and seventeen which you cited to makes this distinction it's not just about what the party alleges but it's about what facts need to be proven in order to establish the case and that court in  that case the court stated at page five however the focus necessarily must be on the facts provable or proven rather than simple allegations or else the outcome is likely to be dictated by the precision of pleading practice legal claims on the same facts as its equitable claims mr harris says it was purely innocent so no no tort claim would have been available that's nowhere in the in the opinion anything about innocence i don't see any anywhere in the opinion it's clear that in that case it was a corporation that was the assigning of a limited partnership the defendants were former partners in the lp they withdrew their investments they there was an us a clawback an allegation that there was an overpayment there could have been a claim for negligence conversions breach of the sherry duty and any of that even if they couldn't reclaim and would have had the rule that mr harris advancing they would have analyzed at the very least they would have said well let's look at what the claims that could have been brought here would with their be legal claims available they did nothing of that sort which indicates to us the connecticut supreme court just simply didn't accept mr harris honor i think it would be viewed as well i think it in the sense that it conflicts it in our view it necessarily conflicts with certain underwriter's that th the top equitable claims are to be evaluated through the doctrine of latches and not by the statue limitations on that point your honor we believe they can't be consistent and as a result the later opinion and we we've cited