relates to one hundred million dollar investment that the three funds made now that the heart of the case up here today relates to the claim that the firefighters have of are that the louisiana funds h that they're not ruling on the prescription issue the second thing is that the for all killing concealment issue as to when we should have reasonably discovered this is a question that has been statute which provides story three year preemptive provision or what we come up in was an old three year drop dead in other words no matter the circumstance you if you don't file your case within three what exceptions exist to that when you're the crips and there are there are a number of them that list now what's important about this none of these issues have been aren't the no argued to the magistrate and they weren't argued to the district or they were argued to the district court but not ruled upon because the district court adopted the decision court you need to consider this book called the fox are essentially uncontested but there is no record of any depositions in this case and the whole fact of the m the purchase they were also all it boss ing the issue on a twenty seven million dollar purchase it was never disclosed to us that that artificial this case but called what came out of the transaction which they served as an investment advisor to love what we call the i p nine which ended up being by you performing these services and matt luggage or who is a gentleman that sign the affidavit says as much so i think from the perspective of the fall joint concealment it is a question of fine there's no question about it that it needs to be decided based on the record and depositions and farther there were no ruling only at the district court level and now when what is your position i think this would be a yes or no question as to whether this matter under state law need to be submitted to the accounting board  also did not want to create grounds for the plaintiff to argue to compromise of personal jurisdiction i was exactly what happened for four years they never raised in any planing the panel review they remove the case from state court to federal court they never raise the issue so i think that we all acknowledge the fact that the reason why they never weighs the issue  because they want to be able to maintain that they have no louisiana had no personal jurisdiction in a state that issue changed when the fifth circuit ruled in awe two thousand fifteen that this case was related to the new york bankruptcy and that's a whole other issue but what happened was that we picked on the question of the county board is it is it true that louisiana statute says that a review panel can be waived only quoting it by written agreement of both parties it does state that but that implies first of all that the pro under thirty seven want to wait until you have a court of competent jurisdiction to look at the exact issues that we're looking at here you can't make that decision not his what was being contested in this i basically mom position that what they did is that the issue of whether a court of competent jurisdiction issued based upon the service of process there was never any ruling o i think that the conduct of the defendants is what is unique about this case because i don't contest the fact as to why they didn't raise the issue because they said he has nothing to do with louisiana it didn't occur so it's it if you look at the natural resolves it's not fair i mean that's ultimately what it comes down to they had knowledge of the claim to know exactly what they were doing that to create a waiver issue and they did nothing or thank you mr price you shave time for about really only in two analytical steps the first is as the district court correctly held plaintiffs were obligated to file first with the accountant review panel and the second is that at the time the district or it made that judgment it was too late for plaintiffs to do that and therefore the disposition below should have been instead of without prejudice it should have been a judgment of dismissal with prejudice so that the parties and the review panel wouldn't embark on a futile out to consider a time bar proceeding this disposition requires the court to consider only one date really it's the day that the plaintiffs say they were fully apprised of their claim that's the date that the bankruptcy trustee issued its report that was november twenty fifth two thousand and thirteen as all discussed in a moment we think they actually had were an inquiry notice well before that but i can see them that point for purposes of this argument if you assume that they knew in november twenty third team that they had a claim and they have the road map for that claim under louisiana law they had one year to bring that claim yet in twenty seventeen they still hadn't done that in twenty seventeen when the district court dismissed this action they were years too late from even the date triggered by what they claim they knew and it's also clear as we pointed out in our brief that under louisiana law this is the bernard case there is no tolling if a plaintiff mistakenly goes into court first and doesn't comply with the mandatory requirement that it seek review before an accountant accountant review panel what bernard says is there is no tolling this is a period that cannot be interrupted or suspended and then the subsequent action file before the account review panel is untime two thousand and thirteen in fact you could see them that they didn't know until they filed suit in two thousand and fourteen and january twenty fourth teen and the result would be the same they would be both barred by the one year discovery period and the three year absolute cut off because at the time the district court ruled it was twenty seventeen it was four years later so with respect to the first step of this that it was that they had to file before the accounting review panel louisiana law couldn't be any clearer on this point the statute even says this is not to be deemed optional they had to file their they've never really mustered a meaningful statutory argument as to why they didn't have to do it today  mr price talked about the carter case but that case involved a choice of law question and a claim brought and the district court's decision under illinois law and the what the district court said if you have a claim that's brought under the substantive law of another state then you don't have to comply with this exhaustion requirement also mention that lamont case from louisiana yes your honor the lamont case is on the path that i'm talking about is it is completely beside the point because we can see them that they didn't know until the trustee report we can see then in fact that they didn't know until they actually filed the complaint in this case and the review panel proceeding and if they bring a louisiana claim they are obligated to comply with louisiana law personal jurisdiction is another question altogether so there's again there's no explanation really of why they didn't have to comply with the statutory argument instead what plaintiffs have said in their greece and here today is that there is somehow was a waiver of this mandatory requirement judge smith as you pointed out louisiana law says that  exhaust requirement can be waived only by written agreement of the parties uncontested here that there was no written agreement in their briefing they relied on the louisiana court of appeals decision which was a two one decision that said under extreme circumstances there can be a waiver through litigation conduct the louisiana supreme court has never addressed that question and hasn't tried to square it with the plain text of the statute which says the waiver can be done only by written agreement of the parties but even putting that aside the conduct there was completely different than what we have here the party the defendant there had filed two answers there'd been extended discovery here as the magistrate judge recognized in rejecting this waiver argument the case was still at the earliest stages despite the fact that it had been pending for some time the reason it had been pending for some time was because there was litigation initiated by plaintiffs who were trying to remain and it back to state court and then there was an appeal to this court in the related case and everything kind of was on hold for a long time but then this it was the plaintiffs themselves as part of the briefing on the threshold twelve b six motion to dismiss that injected this issue in their opposition to the motion to dismiss they said it has been suggested that this that we had to go first to an accounting review panel seeing doc the magistrate judge ask for a briefing on that question and then the bat was briefed as part of the threshold twelve the six disposition there was no inconsistency with what grant thornton said there with respect to what it was litigating on the personal jurisdiction side of the case i would invite you to look at the thornton had no partners in louisiana had no offices in louisiana it didn't have any it didn't have any communication with these funds with respect to the substance of this lawsuit he was making factual assertions that were consistent with the argument that there was no specific or general jurisdiction over grant thornton in this case but that's separate and apart from what substantive law would apply that's separate and apart from the fact that  registered as an accountant in louisiana and that's separate in part from the fact that plaintiffs when they brought this louisiana claim were charged with knowledge of what louisiana law requires which is to go to an accountant review panel first would prejudice and we explained to the district we made this very argument to the district court we said that you are correct the magistrate judge was correct in deciding that they failed to comply with the louisiana law and file with the account review panel but we then pointed out that that dismissal should be with prejudice because it's now too late for them to do that and we cited bernard the very same case that i mentioned to you earlier saying that clearly establishes that there is no tolling if there is a wrongful filing or an erroneous filing in the district court first and under this court's decision in manama inverses garrett which we cited in our brief all of that points to what  this report should have done in this case which was a dismissal with prejudice so that there wouldn't be an untimely unnecessary detour to exhaust remedies that no longer exist and in fact the panel has  when they belatedly filed with the panel the panel stayed the proceedings pending the district court's disposition of the timeliness issue in the related discovery proceeding but the district court in that related discovery proceeding administrative closed the case in light of the fact that the sperm ssion issue is before this court in this case so both the panel and the district court are looking to this court to decide that permission issue it's fully briefed there's no reason not to decide it here and in fact the district court should have dismissed with prejudice on this basis in two thousand and seventeen so that's again that's a very straightforward path which doesn't require consideration of fraud it doesn't require consideration of who know what who knew what when doesn't require consideration of lemont it simply requires you to look at the date of the trustee report which is when they knowledge they were on notice or even the date that they file their complaint in this case when they were clearly on notice and see that they didn't file with the accounting of you can know with in one year or three years of that date that's a fairly simple path to a disposition but i can turn to our second argument which we think is also correct which is that even if you put aside the stock that they didn't file in before the accounting review panel and you just kind of ignore that and you say well they could have filed in gone to court first but that filing in court in two thousand and fourteen was untimely was per ended and that's because they were on notice in two thousand and eleven of potential claim against auditors there were a cascading series of events in two thousand and eleven between january and june that gave them inquiry notice in january leveraged issued revised financial statements making very significant changes to the earlier financial statements  issued new audit opinions with respect to those revised financial statements in march the fun's tried to get their money out in june they were given an iou a promissary note instead of the money that they requested and they've gone on record saying in june as when they when they knew that their investment was not liquid they knew that the numbers on their account statements were wrong and that all that together provided inquiry notice that they had a potential claim inquiry notice doesn't require that you know all the facts that you could draft your complaint that day it simply means do you have enough to pick up the phone and call lawyer and ask if you have a claim and here they clearly had enough to pick up the phone to make that request in two thousand and eleven that they might have a claim against auditors they say they say they didn't know that until two thousand and thirteen because the bankruptcy before the trustee issued his report they actually sued the leverage pons they sued grant thornton international a different entity making many of these same claims about the audit opinions so not only were they  constructive notice not only did they have enough to file a lawsuit in twenty before the bankruptcy trustee report but they actually did so with us against grant gordon international and with respect to a number of the same claims that they assert here lamont is in a political for several reasons again on our principal submission the one i started off with you don't even have to get to that but with respect to the argument that i'm procedure civil procedure nine b and lamont makes clear that that's the kind of allegation you have to have with particularity in your complaint to invoke the fraud exception moreover there their argument comes down duty for an accountant to speak unless it has either contractual privity with the plaintiff or had direct communication or contact with the plaintiff about the substance of the claim and there's no allegation here that grant fortan or grant thornton came in for that matter which was the entity that actually issued these audit opinions had any contact with these funds and even putting all of that aside what lamont says is that if you do successfully navigate all of that and invoke the fraud exception what louisiana courts do is look back to what time period would have applied before fifty six zero four was and acted and what lamont says is if you have from discovery so that's a different path that takes you back to the variants the very same point because they knew at the latest in two thousand and eleven that they had a claim under the previous fifty six zero four l a period they had one year to sue but they didn't sue until twenty fourteen my friend on the other side says that there would be a ten year period that would apply that's a new argument that's not made in their briefs at all things the first time we've heard that but this is what louisiana law says under kenan which is the case that they themselves cite is that louisiana courts look to the substance of claims not to the labels and if you read this complaint it's clearly a now practices in that which is complaint it's not a contract action we didn't grant thornton didn't have any contract with these plaintiffs and there was no king there's no allegation of a breach of a contractual duty  here despite the fact that there's a third party beneficiary label to claim kind of mixed in with everything else you look to the substance of the law and this substance of the claims in the substance of the claims here sound in that widgets and that would be a one year period under lamon but again i could close with where i started which is i don't think the court needs to get into lamont's it doesn't need to get into fighting fraudulent concealment doesn't need to resolve the dispute between the parties about when these plaintiffs were on constructive notice of their claims if you see them that point and you say ok they weren't on constructive notice until the bankruptcy trustee issued his report in two thousand and thirteen they then had one year from that point to file but they didn't file before the accounting review board until twenty seventeen so they were years too late by any reasonable construction of allegations here or by any reasonable construction of the mandatory terms of louisiana law so if if there are no questions well you've got some time here would you narrow down for the court who the difference in this statute embodies the discovery rule but then the three year part is a kind of a hard three year cut off that in you know non louisiana jurisdictions we refer to as a statute of repose so regardless of when they knew both preemption the statute says on its face they can't be interrupted or suspended their mandatory there is the fraud exception that we've talked about but i don't think you even need to get there with respect to our core argument so what we would ask t e court to do is to hold one that the district court was correct in concluding that the plaintiffs stale to comply with the mandatory terms of louisiana law under the claims that they themselves chose to bring which is to go to an account review panel but to to modify the judgment below to make it a dismissal with prejudice because at the time the district court acted and certainly now it was too late for these pla to engage in that process and i think that's a path that would save the parties the accounting review panel the district court with the attendant discovery action would save all those entities from wasting time embarking on a time barred proceeding where that's the same issue would come up again before this court and several years down the road thank you for thank you mr precious have time for a vot and for exceptions exist under the doctrine a contra nonvolatile which need to be briefed and they need to be argument as to why the course of conduct examined if you heard the other side's case it's everything that we should have done to discover their knowledge of the fraud and that's not what the whole issue of fr concealment and whether it extends a statute is about them it's a stretch to make the argument that if we don't have personal jurisdiction over i'm always am a law would still apply out of that i've done this for forty years i've never heard that legal principle is a stretch and we've always said that you can't determine which will always a political until you know which court is going to hear the matter and their condo was very consistent and what is most unique about this case is they admit they admit that they never raised the issues at the different gore about says we're outside the accounting statute and that you have the four exceptions now they admit they will say admit that they didn't raise an issue because of the perfectly or stiction  when we can when they had each one of the conferences that we had in the case never raised it as an issue now as between us and grant on the question becomes on the restated all  know that note that we were investment banks from the twenty seven million dollars of it really has no value now because it has no interest payments on it and it should be written down didn't say that  know what they didn't say in that order when they restated it is that look by the way we looked at it in two thousand and eight and sickle are still fifty million dollars a year money and input in investments and nine o'clock tomorrow