and we are here seeking a de novo review of the facts and allegations set forth in our complaint and we are requesting that this in his much as we are the nonmoving party that the court take what we say or what we have said in our papers as completely true and to infer anything that may be inferred from that which we have pled in our favor we are of the belief that the dismissal of our complaint was by a court that misconstrued both the law and the facts and we refer the court respectfully to our plea which we believe on the face without discovery set forth viable causes of action i would like to turn my attention  to the relator has been interpreted to be a ten year statute the judge that dismissed this particular action indicated that she believed that it was a six year statute of limitations and that none of the causes of action set forth in our complaint complied with that six year statute of limitation i think the courts have been well versed although this particular court has not decided what in effect the statute of limitations is in we believe that the  decision in the matter of wood versus allegan is much more comprehensive than any of the decisions that the ai g has relied on in addition to that a i g has a a defense of public knowledge it is claiming that those things that are set forth within our summons and complaint were previously set forth in either newspaper articles or other  literature to that we say that the statute in terms of public knowledge was amended in two thousand and ten to remove it as a jurisdictional bar to a pleading  therefore they started recovery it's not a border it's not a border recovery or pleading it's not a certainly consideration but not a bar in addition to that my client was the first person to report what the criminal and or civil fraudulent activity was in this case and the even if the public knowledge bar continue to exist which it does not there there are no articles there are no references that would have indicated or that do indicate that mel harris and the no articles to be found anywhere that would indicate even by a scintilla of evidence that the c e o of g e and mel harris who was a well known entity in organized crime who are affiliated with each other much less that they were in a conspiracy to do that which is set forth in the complaint and of course the complaint alleges that the c e o of ai g and mel harris who was his wife's cousin conspired to provide insurance to organized crime entities and that they did it through organized crime brokerage houses and did it as well through mel harris who was again a well known a figure in organized crime as far as principally found that there was insufficient allegations that there was no specifics about any of that and so where in the complaint is there a recitation as to who they were going to his crime figures were  n what when and how they were doing the things that you are alleged generally in the complaint well first of all the complaint is replete with factual allegations of the scheme you i'm referring to court that says a plaintiff's obligation at least at the pleading stage is to set forth the scheme by which these acts occurred and we clearly set forth the scheme and the parties as well as the beneficiaries of this scheme this when the beneficiary without naming names was organized crime but if leading figures in organized crime not just leading we do say who the source is my client was confined to prison and in allenwood he met with met with and listen to organized crime entities and figures who told him what the scheme was in our reply brief but not in our complaint we set forth the names and of the parties and what knowledge in fact was imparted to them while he was in this prison under the case of of novak's versus caracas i don't know the citation but we we are not obligated to set forth at the pleading stage the names yes we set forth the names of the criminal entities that had provided the information to us and we connected it to the information that was provided as far as the names of the entities  for which insurance was written yes this court to respectfully understand that my client is in prison when he is learning this information in the say well my guy was in prison it doesn't get you over the obligation to present facts right well we certainly can't present facts it goes without saying that out the facts that we present will be all demented by the discovery of the school what gives it to us the problem that the supreme court has several of us on this bench know from first hand experience was trying to address  as american medical response think the court goes out of its way in a case not not a similar line a similar factual case but the court goes out of its way to say that the plaintiff has a duty to tell the court through its complaint what the scheme is and we believe that we have done that very clearly we can only tell the names of the parties if that swithin our knowledge and at the time that this complaint was formulated we didn't know the specific entities to which this insurance as we allege faulty insurance due to improper underwriting was given to put that would be an easy matter all we have to do is request from the names of the companies to which insurance was provided and then we'll be able to give it to you chapter and verse same as true of mel harris we can give it to you could we have learned from prison maybe but we did t but we believe that we can get it in abundance with just the slightest bit of discovery discovery an inspection so courtships goes on to say that we have a very what's happening is you've got this person while i was in prison i heard this stuff and that's what that's how this starts no there's more than that my client before he went to prison was a  worked for a fellow by the name of pozner pozner was the owner of a fish back corp my client had personal interaction day to day personal interaction with mel harris and during his interaction with no harris in this fishback case which is one of the instances that we cite where they disguised as an investment loss what they should have  as an underwriting was they didn't a legit as an underwriting loss because that might have led the securities exchange committee as well as those who own blocks of stock to investigate why underwriting losses but was how do you have an underwriting loss you're supposed to consider the assets of a corporation but in any case my client had personal day to day interaction with mel harris and when he my client had put together a conglomerate to purchase fishback cooperation now harris came up to him and said we're not going to let you do this unless you give mr greenberg who's the then c e o two million dollars cash and you give me mel harris seventy five thousand dollars a month association money so this is not all just speculation my client had personal dealings with these people they try to do what i just described to you and in addition to that it's not mere speculation in two thousand and four the new york attorney general sued both a with worlds or the united states largest insurance broker and that senior officials who are receiving kickbacks as a result of the fix that was in so it didn't when i'm but my client put forth in his summons and complaint wasn't just pie in the sky it was supported by facts we gave you individuals we gave you facts we gave you circumstances the only thing we can give you and that we didn't give you is the names of the entities to which this was supplied but that's easily provided in the event we get just a minimal amount of discovery and that's all we're asking for thank good morning may please the court i'm laurie pines and i'm here on behalf of defendant appellee i g o note for the court that some points also apply equally to the other pelleas and they'll be joining me on those issues and then they'll also be appearing on their own behalf your honour's the district court properly dismissed this lawsuit as an entirely frivolous key time action with no basis in law or fact and nothing we have just heard from a though should alter that conclusion the only claims left in this case are the first claims are claims for which there are numerous independent grounds for dismissal that compel a ferment of the district court judgment appellant pollute appears to exhibit a fundamental confusion about what the false claims act sachi does the false claims act statute is not an all purpose misconduct statute and it's not a private regulatory policing statute a viable false claims act claim must meet specific statutory requirements including a false claim or statement that's made in connection with obtaining  avoiding a government payment that was material to the government our brief set forth that pollutes complaint does not and can never meet the statutory requirements we  f in detail that google fails to sufficiently weed the factual basis for these mafia and fishback allegations that underlie the false claims act claims but even putting that aside except in truth in any way there these claims fail as a matter of law on a number of different grounds and in the interest of time to provide a few examples for the court the focus on counts two and three which are the counts that are remain against a i g first there's a basic failure in count two which is the absence of any payment obligation count two is a reverse false claim your honour's which is based on the two thousand and six regulatory settlement with the reverse false claim there has to be an existing obligation and then a false claim to avoid or decrease that existing obligation but a settlement is not an exact a payment obligation and that comes from the statute itself as well as the case law and we brief that extensively on pages twenty seven twenty eight of our brief which which makes the count two very easily not something that can stand another example of a major pleading failure is the materiality here element that's missing and i'll point to count three as as the best example there materiality of course has to be pled with rule nine b particularity did you mean to judge force  what was done because those actually asking the court to accept the idea that the government would have refused to bellow a i g out an action that pollute the admits was done to save the economy from potential collapse honor if it had learned about these alleged misconduct and there are no facts to support that theory it's implausible and what the district court said was that this is incredible and nothing more than conclusionary and made a similar finding with as clearly as it should be but by saying that these are incredible allegations and nothing more than conclusory that to have said the bailout wouldn't have occurred had these had they known of these decades old allegations is is i believe  finding that there can be no materiality there your honor another example that i'll give and this you know is another one just before yours if your other example is by far with the issue have been plead in a way that was material i think in order to have materiality there you'd have to have something that said it would have mattered you know to the government and that therefore they they wouldn't have done the bell out had we'd have to have some facts on that again this this is governed by the room nine b particularity requirement there's no facts or whatsoever to say she had we known of these all unrelated alleged allegations about the mafia and the acquisition  respect in other words this is supposed to be an insider there could have been some internal documents that showed you know there was some intent i mean to remember here that in addition to materiality there has to be a strong inference of fraudulent intent to obtain or avoid a government payment and that's certainly missing from from the pleading if the plaintiffs were able to plead these facts with the requisite particularities and in that sense he asks us to look at the reply brief that he submitted to judge for us but assuming he cleared that hurdle why wouldn't we at the pleading stage assume that an entity such as a s funding of organized crime activities would be material to the government to deciding whether to bail it out and i would think that your argument rises or falls at the first step not at the materiality step what am i missing about your argument well i believe the materiality your honor goes to the tremendous implausibility there still has to be a pause of a claim and the first step whether they've plausibly pleaded  a fraud on the government but if they plausibly pleaded a fraud that that they were concealing from the government that they were involved in supporting organized crime i don't know how you argue to us that's not material well i think the the big you know issue here is there is no evidence of intent to defraud another would we're talking about a completely separate interactions and i understand if there was some showing at the time and that that mattered to the bailout payment but the but there's simply no facts alleged in that regard in the complaint and i believe you know counsel said that that was in the lower court more details i did not see it that way there in the perhaps it helps the court another and these are all independent grounds is really the failure to allege any false statement made in connection with this receipt of the funds that at most it's alleged that he had to attest to the accuracy of its financial statements through the time of the bailout and that there was an omission but there's nothing about how any statements that were made in order to obtain the bailout funds were rendered misleading by the omission of these impossible allegations so that's another big problem and i think the district court properly held there that little fails to identify any specific false statement to secure a payment or to avoid an existing obligation i'll also say that you know in in the complaint we see you know there's this insistence that the two thousand and eleven to twelve sell down of a i g stock could somehow be a false claims act claim and there you know again the area neither obtained nor avoided any government payment in connection with that sale of stock it was a government selling its stock to the public i don't see how that could be any basis for a false claims act claim we briefed extensively the time bar issue you know i believe that it doesn't it doesn't matter here we don't have to get to it i could talk about why i think the six year rule is better i do acknowledge that cases go both ways but the circuit courts have not adopted the decision or the allergen decision that they're not going to tie the knowledge of the relator to the government and if you look at the statute thirty seven thirty one b it's talking about a discovery rule that applies to the official of the united states that's that's not the relator there is not a lot of analysis from judge forrester there isn't i agree with that your honor she did just say that it was the six years but i do believe talks about the state's ten year statue of limitations and simply states that none of the allegations occurred within that period yes and i think you know that's very clear particularly with respect to say count t involves the settlement which occurred in february of two thousand and sixteen and this february of two thousand and six this was filed in july of two thousand and sixteen so even if you added ten years i think there's no issue  that that count two is time barred under any circumstance under any reading so i think we're just talking about count three as having any relevance to that and we briefed extensively i know the counsel just said the bar the  doctrine of public disclosure doesn't exist anymore i think that's incorrect it certainly does the jurisdictional issue had nothing to do with whether we were going to still have the bar and we've we've briefed that i see my time is running out you know in forty good morning your honor is and may it please the court ryan stall on behalf of the star defendants is ms pine's noted we joined in the arguments of our co apple e s i just wanted to take a few brief moments with the court to spoke focus on some specific issues regarding the claims against the star defendants as an initial matter the appeal before you as the star defendants is replete with basic waiver and forfeiture issues in his opening brief or later challenge only two counts that are alleged against the star defendants that beings could be in counts four and five and did so in a cursory three page argument that fails to cite a single press the none in his reply were later curiously does not even mention those counts four and five let alone address any of the arguments set forth in starr's appellee brief setting forth the multiple bases supporting the dismissal by judge forrest in the district court judge barnes doesn't spend a lot of talking about counts four and five that you there that's correct that's correct your honor but all of the underlying findings by judge forrest support the issues before this court and of course you can affirm on any basis in the record and we set forth at length in our in our replied in our brief before this court the multiple bases which i'll get to continuing with the waiver issue your honor in the forfeiture in the reply brief the only argument raised by relator and for the first time as to the star defendants is that count ten states a valid cause of action as did the star defendants this is done in two paragraphs without any developed argument before the court course the law this circuit settled that issues not raised in the opening brief or deemed a waived the law is also settled that issues that are not sufficiently argued in the brief are considered raised and will not be addressed regardless your honour's counts four five and ten suffer from numerous fundamental legal the facts this is not an issue requisite particularity is best that can be backed gathered counts four and five the legal theory that's being advanced is that a failure to quote mention relating decades old wholly unrelated mafia allegations in connection with the shareholder suits that were challenging the government's appropriation of  controlling interest in a i g during the two thousand and eight bailout somehow constitute a false claims act claim because what had these crimes come to light during the lawsuits the government could have alleged this first there's no claim that issue under the false claims act the alleged inability to bring an unrelated counterclaim in a lawsuit does not involve a claim for payment under the f c a as an aside there's no plausible counterclaim that could have been brought in those suits in any event second there's no falsity relator does not identify any plausible false statement in connection with those lawsuits third there's no materiality certainly not under the demanding standards set by the supreme court in universal health services inc there's no relationship between these specious decades old allegations and what was going on with respect to the lawsuits that issue and of course they're also on timely mr greenberg and others left of the star defendants and left a id in two thousand and five this lawsuit was not brought until two thousand and sixteen well past the statute of limitations whether we're dealing with ten years or six years finally as to count ten your honour's that fails on a number of bases in administrative filings don't constitute a claim it's also i see i'm out of time unless the court has any questions will stand on our brief thank you mr starr thank you on this mister morton thank you may please the court jason colby on behalf of mel harris the only count left against mr harris is count ten as counsel for the star defendants explained the relator doesn't mention count ten in his opening brief that's sufficient under the precedence of this court to find that he's failed to preserve the issue for purposes of appeal but apart from that all of a i g's argument about why the relator fails to see to claim under the federal false claims act apply equally to the new york f c a because the courts have recognized the language is substantially identical of the two statutes and the new york courts have applied the new york f c a according to the principles of federal law but apart from those problems there are problems you need to the claim against mr harris and let me summarize the relevant allegations in the one nine hundred eighty s and ninety's mr harris  gauged allegedly in some bad conduct with a i g later in two thousand and five the new york state attorney general sued a i g a i g settled a lawsuit in two thousand and six without disclosing the unrelated bad conduct from decades earlier now mr harris was not a party to the two thousand and five or two thousand and six proceedings with the attorney general he didn't allegedly have any involvement in those proceedings at all and those proceedings are had nothing to do ninety s as quote entirely different unquote from the subject matter of the two thousand and five attorney general of the state of new york lawsuit that's in the appendix at page three fifty so there's no authority from any jurisdiction state or federal that would support f c a liability against mr harris based on those allegations and invoking the conspiracy provisions of the f c a to try to allege that harris can be liable on the basis of failing to prevent ai g from committing a fraud on the government doesn't save the claim because the very last act that mr harris allegedly took based on any well played allegation in the complaint occurred in the year nine hundred ninety when he supposedly accepted a payment but there is no how again and that at that time mr harris clairvoyantly foresaw the future knew that a i g would one day be sued by the state attorney general and preemptively intended for e i g to fulfill a conspiracy at that time by deceiving the state of new york will rest on our papers unless the panel has any questions thank you mr holmes thank you mr dr in february of two thousand and sixteen the state and federal governments settled what they claimed was due and owing them collectively in the amount of six point five billion dollars counsel said there wasn't an obligation that was settled and that's incorrect the state and federal government claimed an assessed that  owed them six point five billion dollars that was settled that claim on both of their parts was settled for one point six billion dollars at a savings of four point nine billion dollars to a now in february of two thousand and sixteen certain conditions both post settlement and pre settlement were contained within the agreement number one a i g agreed to forgo the statute of limitations as to both civil and criminal frauds that it has committed had committed eight i agreed to give an independent entity control of its books and records a i g agreed that it would divulge all civil and criminal fraudulent conduct and there were other conditions on december thirty first two thousand and sixteen which is a one year later approximately the independent assessor is in place a does not reveal not a scintilla of civil or criminal activity the likes of which we allege in our complaint it omits aim  material criminal activity in which it's participating and that criminal activity as it turns out is an assessor e makes a i g an assessor before the fact of criminal activity because they're aiding and abetting and they're enabling these unsubstantiated for lack of a better expression eggshell corporations to enter into the stream of building commerce in the city of new york because they are giving them performance insurance they shouldn't have and all of the other insurances that are required by these large construction outfits and they are giving them a launching pad upon which to practice their nefarious and illegal deeds i can tell you about them but i don't have to the in the complaint so thank you very much mr draw thank you all will reserve decision in this case