against the manifest weight of the evidence this is the interpretation and the construction of the statute sure but isn't it really under a particular set of actual circumstances as to whether or not there's a  bank operating here on that particular issue yes i mean i would tend to disagree with that solicit one of the hallmarks of whether or not something is a bank at least under the pieces that have reviewed the would be considered whether or not a financial institution is operating as a bank and i think the cases on articles three and four but that for now with respect to article four a that's not the case article for a reason it came was because three and four weren't sufficient for what was happening with funds transfer some transfers is being treated as a unique and separate payment method that needed its own article otherwise they would have just stuck with transfers all of them it's a pipeline tast and a lot of the different situations a lot of the different cases issues are not the same as what we had here but the courts like this if you're doing funds transfers or a financial institution for a so i think the big difference when we're looking at three and four and four eight and i think part of the confusion honestly is the definition of a bank under three and four and the definition in the statute itself under for a stay the same thing but the purpose of foray was to do more with funds transfers and was happening under three and four and so in the comment section as as first we've said the idea was to go beyond the concept of a traditional bank because the reality of the world as it was a case is that we primarily a blight upon i think the gold versus merrill lynch case and the cove you know in two thousand case both of them take the approach of what we're hoping the court will will take here that you know merrill lynch didn't fit were article four and that they now they are both out of the four eight cases ok yes but you're saying those are the ones that would most for your position absolutely continue with your argument if you this transfer to him heard any other way because there was how would they know that it's so that's the point that's the entire point and actually the committee addressed that point in the comments i believe in one  five when they're speaking about we have to balance the equities here right you have the you have the customers and you have the banks and we're trying to find a balance of the liabilities banks you'll be safe from responsibility if you have commercially reasonable but personally rea faith are damages we went through the entire evidence or procedure but they did not rule on that now because they found that by bush was not a bank so they stopped their ok so if it's just a pattern in practice and you know there was multiple us for you need there needs to be some affirmative act if that ever happened no that would never happen and i think there's a couple of reasons for about one it is our house our client the customer didn't have an obligation to make sure they were following the rules  you're clearly in the right here i don't think we need to go to cases i'm not aware that there is any specific case like that but the like hasn't this you think it hasn't happened already oh no of course it happens or not to go back to say maybe if there's a case out there that already sa example give exact examples of this situation itself where this is why we're trying to balance the liabilities of but the person who's making the instruction the sender of the instruction to the person they're giving their instruction to right what do we have to do with this relationship who is on the huff if these types of things happen and the comments they give three different examples of exactly this sort of situation somebody hacks the email it's not they don't put the onus say that security procedure it doesn't apply to procedures that the receiving bank wedbush follows unilaterally in processing the payment orders and then sending an email back in the in the hacked e mails that's of the customer and the bank right so i don't you have a problem there because there is no there was no any real procedure there was no written agreement there was no real procedure between what bush and my clients but what we had make use of the safe harbor that's the point there's no commercially reasonable six percent security procedure in place then there's no safe harbor for the bank they're on the hook for sending you know sending out the instructions and sending out the funds to to the  recipient and that's exactly the point so there's no security procedure how could it meet that threshold of having a commercially reasonable one would you also say that we're reviewing that you know to that aspect of it yes ye financial institutions outside of commercial banks even if even if that broad rule is not the way that the court's going to look at it we had a multiple instances here where there are reasons and facts and evidence as to why but bush it out of the comment i think this is the case where we're looking at how the other courts have looked at for a and found financial institutions that are not banks but just merrill lynch which is a brokerage firm are  i think i think that said we don't especially here in illinois and i don't think we have any particular case right on that point we don't generally lynch you saying there was the absolute no evidence of the ability right actually that came up at trial and there was a statement that they were all there was check writing involved in that case and the judge went back and reviewed the cases during a break and then said i can't see where it says check writing in here and because  case and even if we did i don't know i don't want to get into all the all the evidence again is why what bush was actually is the bank because we don't think those extra things are relevant here it's a wire transfer you're a financial institution because we're providing wire transfer services to your customers that's it under for a day but if you if you have to look at that we have to find well there are banks also because of x y and z defense exhibit f is there are procedures that they use for sales taxes and storage fees and there are lots and lots of things here where they have these extra evidence of them acting as a bank but that's really from our perspective not the focus of foray things got a little bit lost in the weeds there because they are offering the services the funds transfers and they're making the funds transfers on half of the clients they're getting you know they argue well we were just an agent that's not true they changed the wire transfer instructions that came from purportedly our client to change the account hackers but i did but they were doing all these things they had three departments that were reviewing the wire transfers before i input into the system which is an open portal with b mo and then b mode as it was that was the you know the customer service customer wrist and accounting at wedbush that were used to verify and process these requests and we secure five busses all that we met is that they were there to confirm that the money was on hand before they tendered the request  to their delegation or their argument that the fact that we processed a large number of wire transfer requests used what was engaged in banking isn't even relevant to this question  relationship we hold the money we send the money out there's nothing in the record at the circle level to contradict that we think that's important what about this idea that article that mattered to us at all to the extent that there are certain rules that apply to the separate divisions of the company yes but in this case there's no dispute that doctor would occur in the fall if you two were always customers commodity treated pre it's in the review here there's just no fact even close question that would support a different finding and that you could look at the resource list for the record in this case that was fully vetted to the nth degree there's not so i just want to clarify a few points and i think we're almost in a way going the same way it went when we were at trial this is it's really is a fairly simple and straightforward plain reading of the statute of for it is all that really needs to happen here we're looking for just a simple construction within the letter of the statute itself and take into consideration the extensive comments on some of the sections what bush was not an agent here in this process using they were the originating bank that we can get over the word bank which seems to be the problem in this case the definition of the funds transfer but isn't that the whole key whether or not they are well i know that the world bank it's a fair financial institution  herring it really isn't necessary for purposes of being a financial institution subject to for a who is issuing funds transfers it's not funds transfers and check writing just one transfer also if it's in the funds transfer definitions it's in that section one hundred four which goes through the definitions of funds transfers that the comments speak more to these types of roles sample of a hacker and you know and how this all works it's in the comments two two zero three which talks about the different scenarios and how to balance the liabilities between a bank who has a customer there who gets hacked but the bank has the commercially reasonable security procedures in place then it's not the bank's problem it's the customer's problem but it's those are there isn't your burden in the rifle concealed by clear and convincing evidence  you're right so that's why i wouldn't get a chance to talk about that we'll talk about that for a moment separately from the four a cases i think in that case the court mr a little bit by misstating the holding of the central states cases by holding that concealment had to be done with an intention to deceive the north the cases that followed central state which focused on different act different standards for finding active concealment and we had material issues of fact that existed here here that you hear so the very first there is more than mine but the very first material fact that they conceal was the fact that they were one of the projects that wire transfer instructions was rejected they rate that they rate they rejected they they rejected structure and they didn't they didn't contact my clients and say oh by the way i think yes they sent an email back to the same compromise system that's concealing a material there just that somebody was sending wrongful wrong wire instructions through to his  be is that you know what we know of this was a hacker and we have an obligation right now to tell him you back yet we got to act so the first one i was the first one instance is the one i just said the second time it happens on december twenty ninth when we but my client received a statement that looked wrong to him there's all kinds of things he calls wedbush he says look i've gotten this weird statement and even they were like well i don't think hector got ahold of those have gotten ahold of that that was why when that incident happened on the twenty ninth and our clients calls them talks to them sends them the statement they get that they see it and set of palling back they said ok we'll call you back they don't call us back they send back statements to the compromise email now whether they you know that's the issue of fact do they know it's compromised at that point because they see what we've sent them can't possibly be right something has to be happening here and then there's radio at what point did they know that's that's why this is an issue