we'll turn to federal trade commission versus federal check processing in corporat extraneous noise it's not good and here i thought they were all here to see you argue you know like i came from buffalo your honor and i guess it's typical we're keep they don't think too a number of reasons why we believe that the one one one introductory interruption i hope sometime before your fingers you will specifically address the amount of the rest to say i will your honor and i can i may be a little bit more difficult but the bottom line is your honor that the magistrate judge looked at this case i think in a vacuum and did not consider a lot of information that he did he had before him the c had claimed the yet there were violations and wanted at the end of the day a judgment against mr brandy and mr moses who was not part of my appeal and against the of the corporate  defendants and we represent mr brandy and one of the things that the ministry judge took into account was the fact that he mr brandy had not filed his response as demand for certain admissions until the time he responded to the summary judgment motion what's the state is then mr moses appealed and he says he abandoned  directly from mr moses i did not represent mr moses in the district and the district court mr moses said to me that he had heard and it might have been from either my client or from me because former counsel that he heard that i was coming to new york to argue the appeal he asked if i could represent him here today and i told him i could not that's it that's all i have for the it's nothing he has as i understand it your honor the record indicates that his counsel moved to withdraw i don't think that anything indicating one of the things that the ministry judge seemed to take into account even though it was mentioned in the footnote was it mr brandy had not responded to the f t c as demand for certain admissions until the time that he responded to the summary judgment at footnote seven what happened was by agreement the response was pushed back and was pushed back to some time when it was an undesired needed time after the the depositions had been completed not clear in the record when we received the depositions but it was sometime after the at the that we responded but in fairness it was within a about three weeks after and certainly within the thirty day period that the f t c wanted to hadn't filed that summary judgment motion there and there was no motion by the f t c to preclude these admissions unlike what they did with mr most that they actually filed a motion to preclude him from  filing any responses to the admit to the demand for admissions they did not do that with mr brandy and i would suggest they didn't do that because it was an agreement and understanding among the parties in the court that this we push back some time to a later date it a page twenty four footnote seven this is actually in the responding brief where they say that the f t c served its requests for admissions on a certain date discovery was supposed to end it a certain date but was done to pending determination of the as motion to compel the depositions and then the depositions took place in august we didn't get the we didn't any deposition was lengthy and we didn't get the response of the time so in retrospect i wish that we had f their response to their demand for admissions we wouldn't have the issue here but in fairness no motion was made to preclude there was an understanding i believe that these would be filed at a later time that they were filed at the time that mr brandy responded to the f t c s motion for summary judgment i don't think should preclude him from day from from being in that position with the response the defense filed statements of material facts which clearly indicated that mr brandy stated that he had nothing to do with the illicit early eagle communications which are made with respect to the attempted debt collection he had indicated that he really had no supervisory position with the company he worked on and basically daily or some ideally basis he would come in make sure the supplies were taken care of and was given the money to deposit in the bank and that's what he did  mr brandy indicated that he was very or he had become very religious and spent most of his time praying at cetera besides it was with well in the findings of fact regarding mr bram well the the what happened was the magistrate judge ultimately said that mr bray and he has denied factually had denied his culpability specifically as to any specific acts that he made the real finding  when those facts in dispute know you well really what i mean next at this point are in dispute because in part there were some tape recordings that were made they were captured by the f t c and there was an affidavit submitted our position has been findings of fact that said mr brandy knew what was going on and was culpable or had made any of these attempts or he had encouraged any of the employees to make these calls and what was the basis for a finding of that some scripts were located not to be redundant were located mr brandy's desk mr brandy indicated that actually his desk was inside a room that he didn't have a desk and the collection floor  in any event he said that nothing was found there it was an issue effect but the magistrate judge for reasons i'm not certain decided against him and made a finding of fact that there were in fact found in his desk and it's in it in this is again at the summary judgment stage but the magistrate judge made a finding that he felt that mr brandy was at the very least guilty of some conscious avoidance and put his head in the sand as to what was going on even though he recognized that mr brandy could continuously denied any culpability with respect to what was happening and he also made a finding viet along those lines was  t there was an assurance of discontinuous which is an if which was in effect prior to the dates that were part of the complaint between mr brandy mosts and the attorney general's office and he said that because mr brandy right that's correct of twelve of the thirteen corporate to friends correct i thought not sure if there was that many around a bit but there were some admissions that he made certainly during the deposition that he had at least previously he had the opposition that's he held a fifty percent ownership stake in those companies i think that varied from time to time based on his deposition your honor but the bottom line was i think that there was some evidence that he indicated that he had some ownership interest in some of the companies i don't doubt that your honor but the question is whether because of their interest he should himself be liable for a ten million dollars judgment which i think was judge six initial question that is if you knew you were looking for worst that they had or the best that they had the worst for the defendants in this case and those were phone calls that were made that we have conceded that to some extent were inappropriate and violated the f c c f t c p a that we don't do minute but the problem here is the out from those limited few phone calls that were made or the f a david to a couple of the f a number of affidavits that were made and some tape recordings that the that they that they took from the we counted up forty five or fifty maybe a few more out of four years and ten million dollars worth of recovery the magistrate judge made a finding that this was pervasive pervasive and and the fact and he has to have a basis to say that and i believe that he made a conclusion based on what he might have had before him even though we had indicated mr brady had indicated that compliance officer of compliance officer had been hired that to his knowledge every single communication had been tape recorded to make sure that this was not going on and what the what the f t c pointed to was well out of the twenty six or so cubicles fifteen or so or twelve or so he had these up scripts contained in their desks around their desks but respectfully i don't believe and i never did believe and i still don't believe that that in and of itself  should have enabled the the magistrate judge and the district judge to find that this was so pervasive that every single phone call that had been made was illegal was in violation and was collected unlawfully there's no proof in the record that was the and that really was the burden but what happened here is the f t c and it just sort of shifted the burden to the defense and we had asked for additional discovery because we wanted to find these tape recordings that was all kinds of problems there no it's it was it was a matter before the magistrate judge earlier before judge scott but there was an issue of trying to get these tape recordings so that we could hear whatever recordings there were but we were cut off and you'll have to manage through rebuttal but i have a question finally run the simple one perhaps what exactly are you seeking from us what's the creed of this court what would you want if you succeeded what do you want we're hoping your honor that the court will overturn the finding of a total summary judgment that the court will return it to the district court for a trial for further discovery for a trial and at the very least for the discovery as to the tape recordings that we feel are an issue with respect to the issue of the pervasive basis of the of the court's finding as to as to the damages you object in the district court regarding the purported inadequacy of discovery we did during the first thing that we mentioned in our responding papers was we asked for additional discovery we it was the first thing that we said right out in the open off my guess your honor i would think well we have to find out what's left over judge the met there was an issue in this case as to we can't go into great much more than this reason i don't know what it is that would happen if we ruled in your favor allowing us to obtain the documents and the tape recordings which were taken which were seized from the the business which you see as for who has them well at this point time and judge i don't know the receiver he had access to them i can't tell you whether mr brown still has some or he has access to them or even knows where the air but we certainly sure like to try to find out if we can all much time would you need to do that i would guess a month throughout or forty five days tops if it really is no the complicated then and then in your view you can proceed to some sort of some sort of evidentiary hearing or trial but it would be it would be a trial your honor i don't think it would be any motion to suppress or anything like that so i believe it would be a trial and at the very least if the court found that the general granting of the summary judgment was appropriate we certainly would like to have a hearing as to the amount of damages that the magistrate recommended and that we don't value you you want to remains for calculation of the damage that's that's correct of inability to proceed with to conduct discovery there was at best a very legal reference to not having enough information in the objection mr brandy objection to summary judgment that the defendants had a year to conduct discovery that was a time frame that they propose during that whole entire time frame never once did any of the defendants including mr brandy say we want to have the materials that were taken from our offices to to review them that is routinely something that defendants can do n do do in our cases they never approached the f t c they never tried to contact the court to to to to pursue this avenue and as we discussed in our brief as rule fifty sixty requires there needs to be an affidavit that supports a request for additional discovery in this context that explains why they were unable to do this they have not they never submitted that and and the precedent of the fact that there were violations by the corporate defendants operating as a common enterprise is not disputed mr briganti has disputed his role in this however notwithstanding his general denials and his denials of of of knowledge of what was going on by his collectors and his day to day management activities those arguments first of all really relate to that time period after the assurance of discontinuance if you look at his deposition which is what he is relying on in support of his appeal he consistently says that the last year and a half is when he stepped back there is evidence of his direct participation both in collection activities and from the complaints that were that were properly considered by the magistra judge mr brand he himself is identified as one of the individuals for the corporate entities that was engaged in the deceptive and abusive collection tactics exactly and the f t c p a in the provision that authorizes f t c foresman says that violations of subchapter which includes deceptive practices and some additional practices will for in preparing for argument identified an additional case that was decided after the submission of the briefs the eleventh circuit in a case called and i will just find very quickly called of the terminations of proceedings in this way that he will be held jointly and severally liable for the amount the full amount of my judgment ten point eight million dollars  remotely that right now there's approximately five hundred thousand dollars in assets that are in for that have been frozen there may be there may be additional assets for about this is for the corporate entities and  c will have the opportunity to see whether there are additional assets that it can collect against but by no means is it going to be anything approaching ten point zero in dollars it's probably not going to be very much above what we already have frozen in any way and in finding any evidence or presenting any evidence in any way that that might undermine the court's finding that the violations in this case were pervasive he had the opportunity he has never pursued the evidence of pervasive violations are are extremely strong over one hundred scripts found throughout the call center fifteen of the collection desks twenty one of the twenty five collectors including three managers were caught on tape engaging in these deceptive practices making threats to extort payments there there is no real dispute and the f t c has evidence is on rebutted that mr br himself was involved in a day to day basis with the collection activities until approximately the last year year and a half with coincides with the state of new york entering into an assurance of discontinuance with mr brand you signed as a owner and operator of the collections business which amply put him on notice as of that date to the extent there was any doubt before that there were repeated and persistent violations by the collection business of the f t c and mr brandy compliance and under the f t c at standards for personal liability for the violations of corporations it's a two part test one  his authority to control which was going to unquestionably did he may not have exercised that control but he had authority and knowledge and having an awareness of a high probability of fraud which mr brand unquestionably did and then sticking your head in the sand and intentional avoidance of the truth there is no getting around that in this case here we are humans  betty first of all your honor ten point two or ten point eight million dollars is a lot of money and i think that the f t c sort of pooh poohs what effect it's going to point something million dollars with respect to his involvement what all i can say to the court is this i could understand if the court made a specific finding effect that he knew what was going on but the court was stuck with his protestations that he did not know what was going on that he did not participate day to day so the magistrate judge instead of making these findings jumped and said he put his head in the sand with all due respect that's an issue that i don't believe the court should find for purposes of summary judgment that's an issue that i think that should be should be determined after a full of adventure ie trial giving everybody the opportunity to come forward as to what he knew what he didn't know and simply relying on something that had been some years before this before this time that we're talking about here certainly isn't fair to him to say that he stuck his head in the sand when there was really no proof that he did he said i just wasn't involved the day to day basis i didn't have the kind of influence i didn't know that any of these phone calls were being made and i do certainly did not make any of these phone calls myself and nor did i prepare a script thank you very much mr graham i mean going over my one minute it's ok to reserve decision