are you will notice that we are missing a member just says enough is a third member of this particular pamela she was held up by hurricane sandy she's somewhere in new zealand trying to get here so she will listen to this on the web cam storm or however you know the streaming and she will join us in the opinion i want to achieve what you do today and if everything is your free will with that we will certainly go ahead investment advisor to waterstones financial and his business partner vicki diggles on it soliciting mr and mrs ross guided us to take out a one hundred percent mortgage on their home made order to invest in this nurse a penny and at the time they received these contracts and you remember two thousand and six and then january two thousand and seven they would have had everything they needed to put them on notice that they were potentially injured at that point but i think this is too narrow a view because we're not looking at the single products here we're looking at this entire investment plan that was presented to the plaintiffs and and it didn't begin just with the purchase of these products the fry actually began in soliciting them to take out this one hundred percent mortgage on their home and then to take these fines and invest them in these products and then the fraud continued on as late as august of two thousand and eight fraudulent misrepresentations were made  times to to have a false sense of security that that the investments that they had purchased were were actually providing them with the benefits that they were told they would receive from these products what was the chronology of the events and do the mortgage come first then an annuity then an insurance policy or how did it proceed and they were kind of done in conjunction they met with them at this seminar i think early insurance products the purchase didn't come until later after they had closed on the mortgage on their home that took place on i believe october early november and then position in asking this court to reverse the trial course dismissal of our claim is first of all our opinion our position in the lower court as it is here is that in that the two year statute of for not apply is it comes back to the fact that these claims are not based on the sale or the procurement of these insurance products rather it's based on the entire fraud which which began with soliciting them to take out th no matter which statute is applied now though we don't believe the insurance or the security statutes up high and the reason being for the securities because there is no security that was sold here section thirteen specifically begins with discovery rule here on before we get to the discovery rules assuming that year we're looking into two or three or a five year period is there any definitive law that says you should look at the lowest the th i don't have any law such as that in front of me i know that will it may not exist but i'm asking you if you're aware of it and i am not aware i know the defendants cite the term cons of case in which the court ruled that because the case was based on the sales  seeking a remedy that available under the securities act number two this is not a security that we're dealing with but regardless as i said even if i had two year period we believe that the discovery rule should be applied to extend the date of a cruel which would extend it out to february two thousand and nine when our clients recently became aware that they had an injury and that it was wrongfully caught and if there be occasion when they saw an additional advice it is and it was at that point in january to february two thousand and nine that they had made several phone calls to mr fair in the stables and were getting no responses and realized ok something is wrong here when my investment adviser i returning my calls and so they sought independent advice and they were diligent in doing so you know within less than a month period they were the party spirit and they don't not responding because the now gone they had had conversations with mr farrah so i don't know that it's a matter that they were no longer available but they were not responding to emails or or phone calls to these individuals and different documents that the parties signed and has a little body into it is there anything else in the record that would indicate that there's a document tying this disclaimer applies to this part of the transaction and you have to take you in stride with this part of the transaction or  to dependent disclaimers on the activities involved i believe they are all independent disclaimers that came with the various products and that's the basis for our position a the court aired and finding that in two thousand and six and the latest january two thousand and seven when they received these disclaimers that they would have been put on notice to find that these unsophisticated investors would be able to read these very complex contacts and know that they that there was a potential fraud here i just think defies logic actually defies you know finra has actually come out and said to its members which includes water stone and mr farrah they've come out with notices saying that because of the complex nature of these equity index to new eighty's investors really just cannot understand or are we aware of the risk  that investors just aren't aware of the risks involved with taking out a one hundred percent mortgage to then turn around and invest in a scheme such as this big waterstones discourage their own people from as far as and i think you're getting to the duties now barter stone would have us under the securities act waterston does have a duty to monitor and to supervise  their registered representatives that it puts out there to the public that it holds out there to do business on their behalf and i know water stone has argued that you know plaintiffs weren't even didn't have accounts with waterstone's so how could it how could they owe a duty to these plaintiffs but there's a case thought out there and it typically comes into play when courts are determining whether or not there's an arbitration agreement because of the lack of an account and courts have said you don't need to have an term under the securities act for registration of that individual through federal and i think based on that association there is an agency relationship year but but  even without an actual agency relationship i think there are sufficient facts and this is a two six fifteen motion that waterstone's has brought in and under two six fifteen and i think there are more than sufficient facts of an december thirty first two thousand and six mr farrell was registered through phdre as an investment adviser and securities broker through waterstones financial which that's the only means that we have possible for him to even even  s wealth management or something along those lines and they have this company they were in this company out of the same water stone branch office and water stone was aware of this they had a duty to be aware of that outside business activity and they allowed this to go on and so to didn't say even though we are allowing this outside business activity to take place in our water stone office and allowing you to come to our office and meet with mr fair who we give him business saying he's a waterstones representative and then to say that you know it's unreasonable for you to believe that he was acting as our agent i just think you know to do that would be a debtor many of the innocent third parties i mean reasonably believed that because because of the signage because of the business cards they were dealing with the waterstone's representative and he was acting within what he was what he was hired to a water stone investment adviser waterston isn't just a brokerage firm it's an investment advisory firm providing investment advice to clients such as the plaintiffs and that's exactly what mr farrah was doing and he problem is as this was sold to our clients as an entire investment plan there's no way that they could have looked at it and the individual piece of this and then apprised if there were risks there's nothing that within those documents that would that would tell them about their risk of taking up this one hundred percent mortgage on their home in order to invest in this plan and there's nothing in there that tells them that they are not going to in fact receive the tax and that's what they've been told  they would receive from this plan and most importantly there's nothing within any of those pieces that would tell them that this package as a whole which is so intertwined there's nothing in there that would tell them the risks of this package as a whole and so while yes there may have been cautionary language in any one product our position would be that the bespeaks doctrine really does not apply here because it's not merely tailored and  case here these these fraudulent misrepresentations were part of the scheme to defraud our clients to take out this mortgage and then invest in these products and even even if these forward looking statements are not enough there weren't there written instrument and our position is not that our claims are founded upon any of these written instruments as i've said over and over it's based on this entire investment plan and the fraud that was that was presented to our clients the cases that are cited by the defendants i believe are all breach of contract claims that actually they do stem from and are founded upon an actual contract so i think that's the difference here we're not arguing time founded on those contracts claims are founded upon the friday in investing our client to take out this mortgage to purchase these products and so you know i just our position is that we were not required to attach those pursuant to two six zero six and you know you're not client interaction no i guess there would be no harm it was just our our reading of that statute that it wasn't required to be attached as the claim was not in our opinion do so did you ever make that request in the turke were we did not because even though we did amend our complaint does i said we were not of the opinion that we need to do attach these documents because our claims were not founded upon  i've started to count how many times in the record and just during oral argument plans counsel uses the word investment plan the statute did this truce to define securities to include insurance contracts  only permitted farah to provide investment advice except they're also trying to hold water still liable because under the securities laws in big can't really have it both ways where they're trying to claim th first because i think the security statute is very clear that the additional two years and let me just back up a second the case law is clear that the discovery rule does not apply in a circumstance where the legislature is clear by including the statute of repose like what is included in the security statue limitations the securities statute specifically includes language that says that there has to be additional two years only applies barring the fact that you couldn't it throughout their pleadings they've basically admitted that they did not ever read these documents until they gave it to somebody else to read they could have easily done that at the front end and they could have said you know let me just wait to get a second opinion think that the fact is they signed documents that said we have read these and we understand them to the point that the point of the show the length of the statue in stations and the point of the legislature saying you can reason with  is required is because the courts don't want the legislature does not want to allow people to just sit there and say well let's see how this turns out and if it doesn't turn out well then i can come back and say you know hey this  guaranteed the certain reserves in this particular circumstance the they have the documents they could have read them they acknowledged through the writings that they read then they could have easily gone after a second opinion it's not least in a position where they should believe that they have a client and at the time that they signed these documents they would have been on knowledge they would have been on notice to know that something that i did or farrah were doing and said was contrary to what these documents  the attempt is so that it can be read for a pilot and in fact one of the highest actually made a specific determination to take the surrender charge a long period of time to receive a ten percent bonus that's not this is going to happen but this document this illustration in particular for our client age fifty eight female it's pretty significant i mean if it stands out and you know the documents that are sparkling from the pin each might make it difficult to read the rest of the documents and these people are not secure is that they are not they're people who are trying to protect their future they're not people who have the degrees or of the skills that you find students who is that accurate that it is that that's what the case law of the supreme court is very specific on the players don't have to have knowledge actual knowledge of their claims players have to be same token these people have come well you're asking us to do if i heard you correctly and as i read your briefs i thought that's what you just missed you you're asking us to say that maybe with a certain amount of money  never identified that dollar value but in our big amount was the two hundred sixteen thousand or the amount that they received on the mortgage that they were going to be using elicit an extreme amount even though if i'm wrong when fears that amount of money at stake saying is true well i think more specifically did the case law says that if you have language that puts you on notice that you are being misrepresented to then we are exactly that language in anything  is nothing you are not going to have these women pull this money out of out of these and then you read that language that says these are not guaranteed returns you don't have to read or understand anything else all you have to understand there is i on to begin to approve the moment you have these docs so every time somebody buys insurance and they also receive this little illustration goes with the whole plan then it this is a line it it and those particular statements that ultimately won the day are very different than the ones in these in these agreements are indication that's going beyond the facts of the complaint what we've pledged is they put them out there with the ability to buy and sell investment products which would include these insurance insurance and equity in and in fact we have the election and i know they say they are at the business of selling insurance but they represented to the f c c me in forms that they have to file that their business activity includes  services portfolio management furnishing advice to clients on matters not involving securities and that is exactly what we've got here so to sit here and say that mr farrell was not authorized to do these exact things that he was doing i think is a disingenuous argument and as i said i think it goes beyond the facts and as we're looking at this is a six fifteen i think any argument that that he's not authorized to sunshine and should be  if she actually executed everything what if any connection does she have to work for him well i'm going to i think the problem that water stone has is that they allowed her to work out of this water stone branch office they were well aware  was at least that complaints have been made in regard to in regard to her sales of securities i mean this would have put them on notice that they really that they should have been supervising this on the nanny duty to supervise this outside business activity  think by allowing her to to conduct her business with mr fair i mean is to say that he just because he didn't sign his name on these products that they wouldn't be responsible i mean he still listed these clients he investor going into this that would it would be reasonable for them to believe that they were dealing with the water stone a registered investor you know i think there are allegations that they dealt with him because they knew that he was registered and  affiliated it's not like they would have just gone to deal with joshi off the street to invest their two hundred thousand that they just took out of their house are there any documents that they actually signed in to being water still financial  of this transaction most of what i see or have seen or read in the national life insurance company that is correct your honor the documents that they signed that were actually sold to them are now water stone are they don't indicate that they are water stone products but that does not believe the waterstone's duty to supervise fair and his outside business activity and i think this goes back to the reason you know it goes back to the apparent agency and the s yours and if i may just briefly also address mister mr keyes arguments in regard to the guarantees that were contained in those documents that they did receive in two thousand and six and i think as we've said there's nothing in those documents that would directly contradict what our clients were told and and you know your honor as as you stated i  mean they might as well if written down there i am lying because what what judge eleanor's ruling means is that you basically have to assume that this person that you are dealing with to provide you with this expertise is lying to you and then go out and obtain an outside expert opinion as purchases you just made i don't think that that is what's required here you know they were under an obligation to disclose the facts to our clients and they did not do so and i don't think that the generic generic caution and language in these policies would have put our clients on notice that they have a problem and because of this you know we would ask that your honour's apply the discovery rule to this case your client signed on signed underneath i can't say that i have done a side by side comparison of those cautionary language or my reading of building in case you were dealing with impending issues or for future promises and i as i argued earlier this case is not just about future promises there were risks that were known to fair and diggles at the time they solicit our clients total of five years and so even if even if your understanding that the security act applies to this investment play and the complaint was filed well within the timeframe of the five years and and