the plainest in the defendant according to their theory according to their according to their brief you were you did not identify the evidence that you believe establishes a fiduciary in fact and so here we are addressing what the judge did with mr johnson situation makes it easier for us to conceptualize everything the other heard here well happened is this mr johnson was an individual creator he was a joint venture partner and actual joint venture in the back john stafford asked him for the ability to negotiate the best price that he'd be a large bank with whom he was dealing to sell already asked him for permission to have the exclusive right to negotiate the best price for their joint business enterprise that was the trust that was rick requested and that was the trust that was ok well here just let me stop you right there and that's one of the concerns i have fiduciary in fact relationship can that be created by ritual one side simply putting all their trust in the other side and basically saying you are my produce hearing back well that's he was the most qualified to do because of his relationship with the bank and i'm also saying that in the case of i said this saturday wrapper case it's precisely this type of situation that's exactly what mr levy who was their mutual obligations were somewhat for those of ours this was the same joint enterprise in which mr johnson i understand that's your that's your position mr fox and you have to help us out here what is your precise position here what is your argument are you all the parties regardless of how they may have looked at mr stafford were equal why wouldn't you say i would absolutely not say ok and this is what i would absolutely not say on page six of my brief for the first time that's in simply mean that this person is in control dominance means that the other person simply has no ability to to respond to that dominance and the question is when i said equals i didn't mean that say that that portion of the compensation that you hope to realize in a way was going to be predicated upon by could develop its that was going to take predicated on market developments among other factors including john stafford going over and working with p t o is it fair to say that if the markets have taken off in a favorable direction piece of your position if your clients it wouldn't be here today way so that every time an individual says ok go ahead take care that if you do sherry in fact relationship hasn't been created by virtue of our decision we lose the fiduciary in fact elements that you want us to amount that would have been negotiated by staff or heavy duty all you have to say is where somebody makes a promise and where there's credible evidence to support that you undertake a specific process where they asked for the exclusive informational conduit to accomplish that trust so that you have no way of invading that informational but you have more we are creating a check and balance and one thing point i want to make circus i think it is a hell and stop right there because you know every time that happen material of the record that he was a rascal was overwhelming was i don't i don't see that evidentiary material being overwhelming in comparison to what we presented here i don't see what that's what the problem i'm having here is that you things where if if somebody doesn't undertake their duty they have and thereby destroyed the potential to report that amount of money that would have been paid how do you the ninety nine rule of the security six change commission which said we're going to allow certain market makers to control history which in turn made it very very difficult it would seem to need even for sophisticated lawyers on both sides of this particular better be lawyer up if you're going to get involved in these kinds of negotiations and the best thing you can do for this to make sure is to make sure that every possible contingency is reduced to writing i think that well i think the only way you can get around these documents it seems to me is that just the tried out this the do sherry in fact correct these agreements were drafted by the layman i note that ok i've read they were drafted by very skillful lawyers and what they were trying to avoid was exactly what you brought us here  can agree with you on the last part because i don't know i know they were drafted by skillful lawyers and i know that lawyers for them say that when the lawyers who were representing my clients the once represented big blu fact claim whether or not you know at least colorable that documents prepared sometime later cannot color that those events that have already occurred in a different way then they arose that if there were others where they fit you share the relationship appears to have been created slate you can't wipe clean what already happened by virtue of these documents that appeared to exonerate or to appear to put everybody in equal position or appear to give everybody a due diligence sort of obligation that's a softball for you you're supposed to say that's true jack i'm supposed to say that's true and that helps me  d that were prepared during the course of the attorney or the lawyer enough so that it appears that judge preston said you know there is not there is no fiduciary in fact relationship here because everybody was a lawyer no no he said that people were wired up because he must have this case was argued about the lorry that was gone was done with the p t o power he was terrible that in fact almost all the argument was signed it and they're the ones who gave the warranty and i think the warranty is important for three reasons one is it clearly shows they didn't trust stanford because the way it came up you asked how did they come up the attorneys testified it came up because he did that warranty would never be in the dock and the third point is they had a contractual remedy and in fact i think you alluded to perhaps there's a misunderstanding that the warranty claim would be against stafford they had a was too but you don't even need to get there because you could just go with the aussie agreement where he wasn't a signatory individually mystified said that johnson was was not the guy that where it was not true absolutely not true johnson hired off weaver just like the big blue attorneys or the big blue parties did sacked after represented them or six attorneys they built hundreds of hours sixty thousand dollars the attorneys representing testified they were rigorous negotiations they were heated discussions that johnson did have an attorney just like the others let me ask you this question regarding what mr fox i quoted mr safir to say he said that he negotiated form cellphone but obviously you negotiate it for the plaintiffs as well because it had to be a package deal or no deal so how does that get factored into deciding whether or not there was a  they're not the only ok and three and so there was a certain amount of money set aside and stafford was going to be using that buy and it ended up getting structured differently but well these negotiations are going on stafford's companies are the buyers they're they're buying they originally said stafford list was tt's agent that was paid closer to the truth than anything else then they came in and said he was our agent act they all then think it was only years later that they didn't have any other place to go that they said it was their fiduciary even they didn't think it's a pretty sure back relationship the original relationship between the plaintiffs and stafford was predicated on a document was it not there was a written joint venture agreement that was between this is important plaintiff's companies or maybe you could i don't know although i don't recall them making this argument that because he had this rather like usual beat up over any subsequent say that it gave him an extraordinary amount of i'd like to focus on some of the facts because you have to look at i think they're cracked you have to look at the entire factual circumstance and when you do that i think you see there can't trust alone is not enough correctly noted that if you look at if you look at state security in both those cases the plaintiff trust that the defendants negotiate for them in a court so that's not enough to get a look at things like telegenic family relationship things like that so look through the factors there's no family relationship players highly intelligent there for season four traders these guys were the ones running business at stanford they're the majority owners they trade says stafford to the market they work out the records i contradicted they were out marketing the businesses they were out soliciting offers stafford wasn't doing that they knew that the value and then the actor size independent judgment and i'm here then i'm holding the facts relating to sanctions they exercised independent judgment in connection with the transaction the big blue plaintiffs came in stafford made a proposal they said it's grossly inadequate they demanded more they alternately negotiated four point five million dollars more for themselves exercised independent judgment  represented by independent attorneys after their attorneys were on call when they're negotiating the terms of the document they didn't go she did a million dollar increase in the back yet portion of the compensation and then you go to the contracts themselves which you've already talked about they represented their sophisticated investors capable of the session the transaction for themselves a four times represented they didn't rely they represented in writing they didn't rely on anything or i think just staff there and i have a you say that an individual that believes he sent her a plane is believed or in a fiduciary in fact relationship would know that from the from the start they might know that he would know that from complete number one as opposed to complaint number bordering on that gotten maybe they don't cross the line but there's certainly enough here to say that you know we're not going to treat this as if this was a frivolous lawsuit and that's the worst presidents that when he addressed first what what the only reason in the court was to highlight the section of the wall that says you can make a good faith argument for the extension of but you know when you say it's the only reasoning it's sort of he means the effort and time and knowledge that he had of this case well i think what i don't mean to demean judge preston i really go by and he was certainly very familiar with this case very familiar with the case but i thing i would submit the real reason was he didn't want to pose impose a financial  know you allow all four amended complaints to be filed because you want the plaintiff the winner you want the plaintiff to get something back or something like that but he he go out for many complaints because he felt that there was something that might support the cause of action i don't know if that was his reason for allowing them or but i well i think we know that that's the law mean that's standard that he was very liberal i think most judges are very liberal and do you have to overcome that showing to succeed on your rule one thirty seven they want one thirty seven so many one thirty seven cases are cited after trial the point is they say they came up with enough stuff to allow the case to go forward and go forward and go forward but it was it was lies and there are many companies one thirty seven cases have there been where the appellate court overrules the discretion of the trial  by the court has no basis in the record then that you should reverse it this one has no basis in the record they never argue for an extension or the case they're still not arguing for that oh i don't know that i mean gosh we haven't got not even close again applicable here i agree but that doesn't mean that somebody can't get through imaginative lawyering i get that the fiduciary in fact ought to be extended particularly to with set of facts look at the timeline for me they say when stafford elicited the trust he was in a meeting sometime in august or september he testified at exactly the same time august twenty fourth they hired sac often weaver but your honor this ok you're right i have quoted this this is a document that their attorneys saw they should have had access to before they filed that they're saying stafford will sue beatty at any cost to create problems this is in something that the lawyers in cook county in the city chicago they then use the next phrase since i was in law school and d d t will not be worse than this deal we were going to batter with hundreds were born expensive if necessary stafford has a lot more to lose than we do no quote from he says he he said its records absolutely clear that the plaintiffs control staffer when they were arguing agency so that claim he comes around stafford dominated and controlled us in the face of these documents so this is not mr fox as to your original appeal rebutting the argument that he made to challenge your position if you'd like to the gentleman sitting next to you and then he's going to say anything yes he does to one thirty s tones in the interactions between the defendant the plates you know not a aspect of fiduciary as a matter of fact as it's a trial with your share is a matter of law and it was difficult in this case always to separate the two because a scoundrel and he's out to get us that simply isn't logical it's not meaningful and it's not helpful all right i can say is this there at the end there is a case by the way that was  to interest or play defend defendant together and then it says because they were the actual parties in the interest we impose upon them and it necessarily follows that they each are the other the duty to exercise the highest had promised to do hadn't been done we knew the money he had promised to get hadn't been gotten we didn't know who he was acting for until that point in the deposition when he said by the way guys i had a pile of money and if i gave you were eighty cents for your eighty his price wasn't in the ballpark i think they want to make sure that john negotiated the best possible price for the d b m s in his interaction with the date so rather than agreeing this is a lawyer this is the guy who actually spent the hours and there's another distinction hampel got up and argue he was negotiating out of going back on those dollars that we were arguing was not dominance over the decision to say yes or no to the deal it was only dominance as to those communications over a purpose to that extent maybe that's what the judge was referred to as an extension the attorney to say that they understood that stafford was the adverse party they would agree with that and so when you look at that and also they look at the case all they pick basically the same the same supreme court cases which say that saying we understand your position one articulation of it an attorney has a continuing professional duty to promptly dismiss a lawsuit once it becomes evident that it's baseless work there's another case that says when an attorney discovers discrepancies or let's let me let me ask you this so if judge preston sad that that obligation there was not triggered do we defer to that up to that determination by judge preston i think the standard of review if you find the court provided reasoning is discrepancies an inconsistency it was mr durham who was responsible for fighting the sac after we were documents he's the attorney who reviewed the documents prepared the piers are we can you imagine yourself being in that position he used think you would have taken a contrary position trying to these documents are work product because we had a continuing fight with stafford all the way from the time that they were from oh you mean it's inconsistent with their position that he was a fiduciary was their trusting happy that doesn't that doesn't take away from the possibilit addressed and that was a waiver sounds kind of well never mind that was not appealed but it's not an issue it's not an issue but when you see those documents and actually conclude and represent to the court that's because we were in potential litigation with stafford at this time and you see the them a script of what they should say when they're talking this is the script this is the script email and this is what they're telling them to say they're saying we've worked hard your proposed offer we just don't think you're ockers in the ballpark based on pricing criteria and again the pricing criteria we think substantially higher prices are available they say if you use stafford or t v can't or don't want to pay the market price we'll be happy to run the company they're giving them clearly getting advice