figure that out maybe it was if you just happen to know there was a motion and the motion referred to things that were quote unquote confidential and supposed and were apparently sealed in the district court my name is michael gross and i'm here on behalf of the island richard sherman this is a case that a bit of an appeal that arises from what i think is a very interesting claim under the false claims act in the district court that you feel i believe it was at least as much about summary judgment procedure as it is about false claims act proceedings mr sherman  mortgage underwriting in two thousand and twelve cadia which is a large commercial mortgage company with a significant hud and federally insured loan platform was in trouble with hud they their license was in jeopardy they had experienced too much interference by their marketing personnel their their mortgage underwriter i'm sorry their mortgage bankers who produced the deals with the activities of their underwriters who are responsible for making sure the deals submitted to hud are in compliance with federal law and because of the difficulty that they were experiencing with and the risk if their license was that they hired mr sherman who was as i said highly regarded by hood whose reputation was for knowing the rules and following them i apologize for that the and by all accounts mr sherman did a spectacular job of serving as as the underwriter when when he was hired berkshire was experiencing some twenty percent of loan rejections when they submitted proposals within a couple of years that rate was down to two or three percent he did exactly what burke kadian needed he were stored  and ability to deal well with hud and he kept on doing it there came a point by two thousand and sixteen which is a year in which he was terminated lawyer his appearance to the rules and his insistence on submitting loans in compliance with federal law had gotten in the what was it was in the way of a renewed inclination by hud renewed influence i'm sorry renewed influence said bircher for the production people to be able to produce more revenue and mr sherman in june of two thousand and sixteen said st of all the mr sherman had done a superb job of accomplishing exactly what he was supposed to accomplish but also that it was now time for the company to have someone who was more flexible who would push back who would be less rigid about compliance with the federal rules and the subtext there which is the record is rip is marbled with this this evidence is the production people the mortgage bankers particularly mr ervin who was the head of the mortgage bankers on a great producer in his own right were frustrated by the necessities of underwriting as mr sherman enforced them so in the district court sought and obtained a summary judgment and the rationale for that summary judgment was that mr sherman had failed to provide ample evidence of the four of the four elements employer must have been aware of that activity rd if the company retaliated against the plaintiff on account of the activity and forth that the activity that the retaliation was  problem with that is that this was summary judgment this wasn't trial and in summary judgment as a district court correctly recognized that there doesn't have to be conclusive proof that the motivation that the sole motivation for terminations or for they retaliate was the engagement and protect the con and protect the conduct there just has to be some buttons that the retaliation in this case terminations was motivated law would be unable to find that it's the sole motivation so if there's significant evidence of other motivation such that no rational jerk could ignore it when that be sufficient to sustain  that i would say the judge judge simple got that proposition of law right when he said there needs to be some evidence from which a juror could find that retaliation was the that represented retaliation so your contention is that he weighed the evidence as opposed to just looking at all the evidence and making that kind of global determination that there was such a possibly of evidence that no reasonable juror could have found sole motivation that's a important aspect of my position that he that judgeship away the evidence but but the overall position that mr sherman would have in this court would be that it when you do look at the global picture when you look at what his at his history and his role at the company and the company's pattern of what it needed and how the is going to behave from time to time two thousand and twelve and not going on through two thousand and sixteen what you see if we were if we were if we saw this the the time line of this evidence in a movie you'd know where the movie was headed he's going to get fired because the company because the people who are producing the revenue consider him to be in the way and they had gained sway within the company again by two thousand and sixteen the the the evidence the record  with with evidence of mr sherman's in gage man and protected activity that was his job he's the cop and his job is to make sure that there was compliance with federal law from the time he was hired right through the time that he's fire where things went south for him was began and in two thousand and three with mr urban the head production guy there was always friction as the chip the head of the company said and we quote of this i think at the beginning of the brief there's always going to be tension between the production people who are who are bringing in the revenue and making commissions on it and the underwriting people whose job is to make sure that the deals actually comply with federal laws and where things went bad began going bad for mr sherman is when he got crosswise with mr long in two thousand and fifteen in may june july two thousand and fifteen and there after that particular incident that's briefed as the the rancho but it does require compliance with federal law that's the only way it works in two thousand and fifteen they had the rancho project going on the rancho project included a bridge loan a bridge loan is some interim financing that can be part of the overall loan package and that doesn't disqualify a loan for several insurance provided that it's disclosed and disclosed properly along the way in the spring of two thousand and fifteen mr l who happened to in addition to being mr sherman supervisor also was in charge of katie is internal bridge loan operation where we're brocade he would actually make the bridge loans and advise mr sherman that the bridge loan that was already part of the package might be expanded the borrower wanted to get another ten million dollars in that bridge loan and mr sherman told him if that happens we'll need that we'll need to disclose that to hud the  the the the the the expansion of the bridge loan did happen it happened on june th the loan closed on june th mister shermans percent mr sherman didn't learn about that from according to his testimony and tell july th of two thousand and fifteen and mr sherman became confronted with mr long about mr wong having withheld that information from him until after the firm commitment was detained from hud which happened on july th mr sherman wrote an e mail to mr to mr i'm sorry on july th on july th the day i'm i may be confused about the july th and july th but july th is when the issue was pursued potatoes between mr sherman and mr long and mr sherman accused mr long question mr long about whether he had intentionally withheld the information that needed to be disclosed to hud because hud might consider that additional bridge loan to increase the risk too much it also is important when you have the the the the bridge loan that the  hud know exactly what the nature of the the underlying lending practices are so that they can assess the risk properly the confrontation between mr sherman and mr long escalated and there was a point in the summer of two thousand and fifteen where mr sherman went to the board of directors and talked with two point two members and expressed his concern about the details of this transaction and they suggested that he go back to mr law and he went back the same day and met with mr long asked him if he if he had intentionally withheld the information was too long stormed out of the room in due course mr long who had said earlier that mr sherman is the man for this job and praised him very consistently wrote a memo saying i wonder if mr sherman is the right guy for the job and very soon after this confrontation mr urban who was the head of production and had this friction with mr sherman wrote to the head of h r in book eighty f and said would it be a problem if we fired mr sherman line there has to be separation for hud to be satisfied between the operations of the mortgage bankers the production people and the operations of the underwriters the mortgage people can't exercise influence over the the underwriters or has the worry that the the underwriting recommendation will be tainted by the people who are making the money off of the loans that get approved the mr sherman had a track record from the beginning bringing a bright line violations or his concerns about potential bright line violations to the attention of the mortgage bankers and of his superiors in particular mr law but when the confrontation between mr sherman and mr long directly over mr long's conduct occurred that was the beginning of the end for mr sherman a year later mr long had there was some now some documentation of mr sherman's purported shortcomings as a the manager of the underwriting department and  and and mr sherman in due time was replaced was replaced in october there's a memorandum internal memorandum written by mr long on june th of two thousand and sixteen that that actively contemplate clearly contemplates firing him recommends firing him but also considers all other alternatives the district court declined to consider mr sherman's protected activity protected conduct time but the summarize our position is that that is a narrative that is amply supported by the evidence and this is a summary judgment and the narrative that that is supported by the evidence and mr spader is he was hired for a particular reason to do a particular job which was be the cop and he did it extraordinarily well right up till the time that he was fired right through the summer of two thousand and sixteen there was evidence that the company that the  ambition to increase revenues and have a less rigid a more flexible that is more compliant with the with the produce the mortgage bankers or sort of that description replace mr sherman is the reason that he was fired and a jury should mr banks will hear from you may please the court michael banks from acadia would you like me to address the sealing question st before every guy i'll be very brief there were a number of materials in the district court that were placed under seal because they were confidential is misinformation for the most part given the passage of time i don't think it's necessary that those remain under seal there was one issue though there was a discovery dispute in district court require involving burr katie is obligation to produce a privileged e mail from its in house counsel excuse me a privilege memorandum in the district court judge  ruled that that should be produced but it would not be a broad waiver and that its use would be limited to this case i don't believe the entirety of the briefs need to be under seal but so as to avoid a broader waiver perhaps we could submit to the court if the court would prefer redacted versions of the briefs that just remove any substantive reference to what is in that internal report if the court would prefer we can do that all right will confer on that and put out an order along those lines if we'd like you to do so you're saying you think the most you would s to seal at this point would be a portion of the brief that refers to this privileged document that could be redacted if we're just talking about the briefs rather than the appendix yes your honor just we would sorry i noticed my clock started to run as we were discussing that i didn't know if that was considered part of my argument or why don't we see how it goes if you need two more minutes at the end thank you i'll try to be charitable that i don't  claim is actually quite narrow as this court has recognized it is not intended to cover merely an employee who objects to issues relating to the administration of a government program on the contrary there are two steps to the process the st is whether the f c a is implicated at all false claims act applies to one who makes a false or fraudulent claim for payment by the government if there is an f c a shoe then the nd question of course is whether the individual was subjected to retaliate in the form of a discharge or sole for opposing the submission of a false claim for payment mr gross focused on the th element the terminations will address that as well but as a threshold matter i would submit that as a matter of law there is no f c a issue at all here mr sherman did not at any time oppose th testified no one had dealings with hud other than me that's a quote nothing went too hard that he did not approve and he testified that he was never pressured to approve a submission to hod that was false or incorrect in any way that alone your honour's should dispose of the false claims act issue in this case in fact this case is reminiscent of other cases that have come before the news corp show vs bluebird media by way of example and green versus city of st louis both a circuit cases  in the shell case the plaintiff complained about the way a federal grant was administered he thought it was administered improperly and that his employer may not be honoring obligations to the government under that identifying issues but he was not opposing a false claim for payment that his employer was making to the government the same in green where the plaintiffs had complained about flawed policies and reports relating to the use of government funds but there was no false claim at issue mr gross identified the ranch alone there are two definitely no objection to a false claim in the rancho case rancho involved a loan that had been submitted to hud for approval it was approved and thereafter sought to increase the size of the loan by another ten million dollars it was referred to as mr gross just said that mr sherman testified in his deposition that he did not learn of this upsizing until july ten which was fourteen days after the closing sherman did not read the entirety of the mail it may be he forgot about it in not going down the trail but he's loud and vociferous accusation against mr long accusing mr long everyone to see objective beyond that there is no issue whatsoever of a false claim related to the upsizing of the rancher alone we know that from mr sherman himself when mr sherman was reminded on july the th after the loan had closed about the transaction and the upsizing he wrote to hu this is on page two hundred and ten of the appendix this is what mr sherman said to her he wrote that the loan had closed that the increase did not undermine the integrity or independence of the underwriting nor did it circumvent the program requirements it was a good loan mr sherman assured so where's the fraud on the government where's the fraudulent claim for government money there is not as judge simple recognized the same is true as to the caliber on which mr gross did not mention his argument but which is featured prominently in the briefs the calabash alone involved a communication with the government in two thousand and thirteen that mr sherman now objects to he says t incomplete and did not advise the government fully of some erroneous representations that had been made three years earlier to the government with a loan application in two thousand and ten alone took place at a time before mr sherman even joined for katie the time line on this is quite important because because you have several distinct pieces to the government we now want you to step in that's what hud does it effectively ensures the loan the error in the two thousand and ten submission as mr sherman concedes was not discovered until two thousand and thirteen in two thousand and thirteen it was learned that there were some fees that were not included in the original loan application mr sherman believes there should have been more said to the government he's wrong as judge simple noted that communication to the government was accurate but that's not the f c a deficiency in his focus on the caliber of the memorandum that was sent to the government in two thousand and ten application was wrong we are offering to take this loan off your hands we will no longer ask the government to be responsible for the default and financial consequences we government and saying we will insure that because our loan papers three years ago were wrong that we will make you whole and absolve you from any financial responsibility so there's no false claims act of a so conduct that mr gross also mentioned the issue of a bright line violations the bright line is an informal rule adopted by a hud that says that producers are the people who generate business are not to be too involved in the underwriting capacity they may not select for example appraiser they may not select vendors and consultants that's to be done by underwriting and they can't dictate the scope of the underwriting and that makes great sense underwriting is supposed to be independent of the production and revenue generation process underwriting ensures the integrity of the loan what mr sherman doesn't say is that any application was ever submitted to the government bright line informal rule and in fact he could not say that because as i mentioned earlier and as he testified he was the only one who communicated with  and every loan application went through him so he's more like the plaintiffs in the shell and green cases i mentioned earlier he someone who's saying to mr long on occasion  we have people here on the production side who are a little too aggressive they're trying to get involved in underwriting now as judge simple noted mr long responded you're right that can't happen there's no evidence of a retaliatory animists for that but besides that is not opposition to a false claim that's more questions raised about the administration of a cadia in general compliance with guidelines so when you look at this case you can see quite clearly that there is no protected activity in that there is no false claim submitted to the government nevertheless we should address the terminations issue what mr gross referred to as the th prom whether mr there's evidence  sherman was terminated for solely because he opposed the submission of a false claim i won't go through all the evidence because it's quite detailed but i will just summarize briefly if i may mr sherman did many things well and he was praised mightily and frequently by mr long for that he did a marvelous job of restoring credibility with and in overseeing the process of  submissions to he has not identified a single instance in which he was disciplined or criticized for his role in approving loans or any loans that he rejected for submission to god the problem though was his leadership in the department and the significant lag time for cadia was taking twice as long as industry standards to process of loan applications and his friction with others that was noted back to two thousand and fourteen for katie and brought in are now side consultant john norton to address the issues with the head of production and mr sherman mr norton conducted thirty five interviews in twenty thousand one hundred and forty two years before the terminations he then spent months analyzing this and making recommendations the outside consultant who had no role in the loan application or approval process began to conclude after extensive coaching with mr sherman that his efforts were not working that mr sherman was  fatally resistant to change and would never get over his friction with mr ervin the head of production mr norton the outside and began to recommend terminations and as these problems were brought to mr sherman's attention mr sherman reacted quite badly by any objective measure in the spring of two thousand and sixteen when matters were brought to his attention he took an on in a previously unannounced and unanticipated one week off from work he'd just left and said i need off from work mr long wrote to him and said you're not resigning are you because mr long at that point didn't want to lose and it got worse in plaintiff's appellate brief in the reply brief there is a reference to a piece of an e mail that mr sherman sent on may if mr ervin remains the head of production in this next part of the quote you should t up the next organizational change announcement with my name in other words he said blatantly if you keep the head of production who by all accounts was doing a spectacular job it's him or me gone he also wrote that he had been staying because of his team but he asked he said to mr long quote is that enough to keep me in this environment not a chance so at the same time that mr norton the consultant mr jensen the chief financial officer and mr long were all concluding  sherman over a period of two years had been resistant to change would not improve his underwriting department and was in the midst of irreconcilable friction with the head of production mr sherman was saying you must fire other people or i go through it was in that context that the decision was made i submit there is absolutely no evidence to suggest that a retaliatory animists played any part in the decision making let alone that it was the sole reason this history was not disputed mr sherman did not can attend t the statements were that these discussions never took place he speculates the qs news i'm sure he disagrees with the decision and believes it was unwise but that's not enough to a claim under federal or state law mr gross did not address the common law claim i'll be very brief on that the common law standard is a little bit different but again it requires under missouri law a showing of a well established and clearly mandated public policy at issue there is no statute or regulation at issue here other than the false claims and as we demonstrated the false claims act is not in this case your honour's unless you have questions for me i see that i won't need the additional two minutes so thank you very well  me to present the argument thank you for your argument be reported was the actuality of the loan the loan actually closed on june th mr long's e mail message at that time saying good job everybody went to the production people and did not go to mr sherman on jury might believe or not believe that he didn't he read through it and i did and he did not and it did not register with him that there was a that loan was going to happen it's scheduled for closing but loans get scheduled don't get schedule mr l subsequently testified that his communication on that issue had been pork with mr with mr sherman the and that the notion that the bright line rule is some some lacks or an important concept is is the opposite of the case the bright line rule was is is hud's way of one of hugs ways of trying to ensure compliance keep the guys who are pushing the deal out of the evaluation times it's it's a crucial part of mr sherman's job mr chairman jobs a crucial part of pretty is business and ability to keep making federally insured loans and there was constant tension about this subject when mr long and mr sherman had their terminal conversation mr longfellow mr sherman you're fired october of two thousand and sixteen mr sherman said why am i being fired what is in mr long was a base of and then eventually said you did yourself no favor by going to the board and that was a reference to mr sherman having gone to the board to members of the board d and told them about his concern that mr long had withheld information about the bridge loan expansion which was mr long's own loan i'm about out of time if there aren't any questions i think the court for its attention and the case is submitted the court will have file an opinion of course thank you for thank you for your parents and that you may be excuse