about something wrong in my brief and then tell you why you should vote in plaintiff appellants favor in my brief on page thirty six i stated that the state law claims could not become could not be dismissed because we had diversity upon further review i was wrong i did not have complete diversity and i withdraw that point in my brief the reason you should hold in plaintiff appellants favor is that the met life salesmen williams  falsified suitability questions in the annuity application in order to sell an unsuitable annuity and met life profited in fees all in violation of section ten b of the exchange action we've used those words but the cases are few and far between from what i've seen upholding a ten b five claim on a straight unsuitability analysis most of them involve a missions failure to disclose certain aspects of the security that is purchase and i mean i'm a little concerned about the potential breadth of that doctrine even acknowledging that the district court may have been made correct in what he said has been contrary to statements that we have made because you know isn't  every security that ends up potentially performing poorly turned out to be unsuitable and particularly with regard to individual investors who are less sophisticated than institutional investors i  can imagine just a huge number of claims if unsuitability post ex post facto was all one needs to prove to make out to tenby five claim can you lay my fears yes i can your honor and those fears are well placed and that's in fact why there are some heightened pleading requirements and nine b to avoid strike suits by those type of investors this is a different case we have someone who is mentally deficient who is totally incompetent who was unable to determine anything about the scope of the suitability of this annuity the brokers and the registered representative williams had a duty to know the customer and finer of demands suitability requirements under rule two one one one the reason this was unsuitable is not because it was the annuity was performing badly it sun suitable because mary katherine hart had  vested and knew it with its a retirement income guarantee plan that cited in the record it a fifteen paragraph thirty six they transferred her money in the safe new ity where she paid no fees no surrender charges no other fees she had guaranteed income every month and they sold her an annuity where she became subject to surrender charges i have learned after filing my complaint and while we haven't had discovery in this case terribly exchanging documents among the parties because we were voluntarily going to mediation i have learned met life profited over forty two thousand dollars they even took over twelve thousand dollars when  supreme court judge ordered a turnover of two hundred twenty five thousand dollars to the guardian this is not in the record rate in the record a thirty and thirty one that my life was taken fees and for these malefactors to prey on this robertson because they had more easily could just withdraw and take her money from her i gather from the  account and they could have from the pension account why is that correct it's not incorrect as far as what the thieves did but as in correct as far as met life selling the security to heart but it was going doesn't it raise  problem for you in a securities claim of lost cause ation said the cause of your client's loss in the case were not the and suitability of the annuity or misrepresentations about it it's that the cause of the loss was that the money was withdrawn by the merits i mean i think that was essentially the the bulk of the district court's analysis the thrust of it to which i would say what about the forty two thousand dollars that life help themselves to they were profiteering on the sale of this unsuitable security that was about ten percent of the money surrender fees yes judge surrender fees they took a sales charge when they turned over the money in judge panel pintos order and they took a fee to add this annuity to get a guaranteed income every month charity had that over at xerox she had that money there a long time she didn't pay any other surrender charges and the salesman falsified all the suitability questions it's in the over to pursue her claim against met life because i was really disappointed surrender fees seems to be the last that has the nexus to the unsuitability claims that right while there are other state law claims concerning the  life in allowing the thieves to take a but those issues were not found by the district court i think your honor we would it be setting a very bad precedent if we say life just took a little bit of money selling this unsuitable security we have to look at both things that were done and the part that district court looked at is they said you can't bring a claim for selling an unsuitable security and that is simply wrong with your strongest case supporting your unsuitability cause of action under ten b five brown v e f hutton your district decided that we in brown didn't we say there was such an action but i'm not sure that we have to be security as a subset of the ten b action you're on or around and i realize we say that but i would very much like to know of a case in which we sustain be awarded damages of unsuitability claim that wasn't it omissions there anderson the land was another one and brown you know that was a case involving four hundred investors and brown we said that there could be done suitability claim but we did not set the unit that's because it's different you're dealing with four hundred people looking at oil and gas partnerships this is one one and who was mentally deficient and the money was coming out of her safe new it is again with ceroc she was a machinist for forty years before her mas stroke i think we have to protect people like the sure on her and this could be the first case if there is no other such one the the fact is we do have reckoned you have recognized that and sale of an unsuitable security company and charlie well liam's ms maloney pointed out yes there are ways in which incompetent individuals can be protected but in this particular case while there may be state law claims possibly there this is not a securities fraud case but you acknowledge right that we said in brown that there are did i did not display did not dispute in the brief that suitability can be a basis for a ten b five climb what's different here is this is not a situation where you know even assuming  there was a lack of suitability and again i we dispute that that really was spelled out in the complaint and sufficient detail but even assuming if there was lack of suitability that key factor missing here is lost causation the what about the surrender fees what about all of those did i have any tens of thousands of dollars it was that even if the merits had wanted to steal from her and they had left her money in the pension they could have taken it but she wouldn't have she would have been left with an amount that she now doesn't have because of met life surrender fees but the real cause of the losses here was worth was the the surrender fees the same thing scheme could have been perpetrated with leaving all of the money it had charlie williams not made the sale of the a new woody and i don't recall  out of the sale with it was a commission what i point out your honor that even if there's an allegation of mis statements that these documents were prepared in the presence of individuals there was an were so facially valid power of attorney met life had to basically act in accordance with the power of attorney so i do think that the critical factor here is though the lack of the you knew that he was just the vehicle for the theft here this is not a situation where there is securities fraud and loss cause ation unless you have any other questions i have nothing further could it have ignored the power of attorney that was presented to me i said court cases and my brief but quite simply that transaction should be void you can never purchase and you can never  use a forged instrument including a power of attorney and it should be void ab initio so that the net was one of the state law claims we never got to at the district court because at this complaint was thrown out on a twelve b six motion because of the one fraud or cause of action but there are extensive new york cases regarding the forgery of documents including most of them relate to real estate but they would support the position of the forged power of attorney you know william should it be even asked about that he used a part of attorney that was executed six days after this massive stroke by this woman she was actually in conscious unconscious and in a coma in the hospital on the day that was x executed he knew at the least because he had put down that she was on social security disability no your customers would require why is she on social security disability what's going on with  turns out i learned out after in the voluntary exchange of documents that hart was in the room at the time this was sold on and speak to the denial of the motion to amend yes i would your honor we should be given leave to him and even and metlife is that and sale of an unsuitable security is not a ten b violation when in fact it is this is a case it's a very serious case this woman has had essentially her entire life savings embezzled but for what we're able to save and freeze in the course of the guardianship proceed in we have learned with the exchange of documents especially when you have someone who's incompetent and can't tell you anything of what went on discovery a screwed up call we should be allowed to amend our complaint for those reasons thank you thank you both will take it under advisement thank you