counsel morning may it please the court ellie scheibel for the defendants appellants your honors we are here today because the jury verdict in this case constitutes a manifest injustice it's an injustice that this court can and should correct i'd like to address three points today first contrary to the district court's holding a lawful investigation of fraud complaints by a d a s office does not constitute some evidence of tortious interference with contract there was no evidence of tortious interference here was this  lawful investigation yes it was it was sparked by from the complaints the sworn complaints that they received from over forty six individuals alleging that this plaintiff had had committed fraud and was not operating a legitimate business was this raised at any time below this the argument that this was a lawful investigation and the case should be dismissed i think throughout the trial the defense main argument was that they were investigating pursuant to the complaints and they followed the standard procedures that they would use in any investigation of another question here and that is that you're taking the position that a manifest injustice would occur here and that's because the arguments were not made in the fifty the time of the fifty be worth the time or on the on the on the initial appeal they did not in the fifty or in the first appeal we do have that we argued in the brief that they have waived the argument that we need to show manifest and just have several cases that support that position yes yes and if that's the case then the standard would not be manifest injustice right no it would be as straight as a matter of law it was as though it was preserved all the way correct yes yes i mean you have you have two different standards you're arguing the h you're putting up the higher bar in front of you rather than the lower part of this point yes your honor because we think we meet that higher bar and therefore also the lower bar just judgment as a matter of law regularly because there i think this report basically conceded that there was not sufficient evidence here of tortious interference i also want to address the conclusion which i think was completely unsupported that point of could have shown additional evidence if only the rule fifty had been more specific and particularly focusing on the it on the issue of whether there was there was some evidence we've addressed this but under new york law it has to be intentional interference with contract it cannot be interference that is incidental to a lawful to lawful government activity  no it did not your honor i don't it i don't think this issue one for the jury and i don't think there was any evidence from which a reasonable jury could find that this was not a lawful investigation there was no evidence whatsoever that these days were personally motivated there was no evidence of misuse there was an issue as to whether there was any breach at all there right but but but in any event if there was or if there even assuming there was a breach that they breached or that they discontinued i thought what was the evidence or i'll be asking the other side with the evidence was if any of that there was of course asian as opposed to just business reasons that these people decided not to continue with business arrangements either in terms of the distributors or the advertisers you're in i think that we would completely agree with you that there was no evidence of causation here there was lots of evidence that distributors were independently disgruntled with this with this point if there was lots of evidence that the reason that print that there was no breach by printers that they stopped printing for plaintiff because he didn't pay them the only thing i can make out that plaintiff cites as evidence in his it his brief on appeal is the existence of the civil complaint by the distributors but i don't think the existence of a civil complaint shows causation or breach of contract it doesn't reference th investigation it references those distributors individual interactions with the plaintiffs and their belief that he had committed fraud so i would agree that there was no evidence of causation here and on the issue of the district court one of the district courts primary holdings was that there was no manifest as manifest injustice because maybe plaintiff could have presented additional evidence to satisfy the elements of the claim i think that that was unfounded legally or even address reports that the double wavers it did not so what about immunity are you still pressing on that part yes we are we still maintain that these defendants are entitled to absolute immunity under state law it was an investigation but you can't get absolute immunity right under the state law cases i believe you can't but you have a variety of immunity arguments one of them is qualified to be an idiot my right under the state law it would only be qualified immunity if it was held that absolute did not apply right but you on appeal are also arguing qualified immunity in the alternative am i right yes doesn't this issue wait no i don't believe the issue was waived during the fifty argument the there was a colloquy that the pendants were specifically raising the immunity argument that they had raised in their summary judgment motion in the summary judgment motion they had argued for immunity under state law they cited two cases regarding their immunity in the context of a prosecutor conducting an investigation and there is case law that in new york investigation is a discretionary function for which the official is entitled to absolute immunity we've said a number of those cases of qualified immunity goes we don't accept your on that on the absolute don't think you can rely on that as evidence of bad faith i think there needs to be evidence of bad faith to support the jury's finding here there was none there was there was no evidence whatsoever that these defendants acted out of malice the investigation was only the the evidence was only that other testimony from mr contests that told him when he served the subpoena that he would get him i don't think that's enough in the whole context of this to make out bad faith on the part of all three defendants disagree whether there was sufficient evidence before the jury to phase conclusion that's really what you're saying yes was there evidence that one of the defendants told either the printer or the distributors that this was a ponzi scheme you know there was evidence that after plaintiff business had ceased operations after he had already gone out of business and lawyer had called the district attorney's office and that during the course of the conversation the term ponzi scheme may have been used there was no evidence that was used by the d a and when asked specifically the  f testimony was i never told the lawyer you were a fraud and never told him you were a scam he told me those things about you that's what the testimony was was testimony from kaante him self that these things were being said but  your position that was all hearsay are opposition to all hearsay and under the new york we said a number of new york cases that say that vague allegations by the plaintiff that third party stop doing business with him are not enough to make out a claim of tortious interference the morning may please the court michael zoo for the plaintiff epeli we believe that the district court got it right in denying to defend its fifty motion on both grounds on whether it was waived or under a manifest injustice standard  with respect to manifest injustice let's look at the waiver point first of all because if you didn't object on the basis at the fifty two opposition to the fifty two motion and you didn't appeal it why didn't you conversation that i'm having with you i'm going to charge you with obstruction this is followed on oh this came through you know testimony with the investigative files on it so it was through this you know he i thought he took the position also that that that was not what course to do it but that the product wasn't wasn't available and that therefore  indicating that there was an investigation going on but that it did but that doesn't make it clear that that was the causation here but in your line hobby are happy happy yes poppy and the poppy said that he wasn't getting a product and that's the reason he did it not because he was intimidated or scared off by the investigator but he also said he was threat he felt he was threatened as a jury heard all of this with respect to the evidence that went in so the argument would be that there was sufficient evidence of this interference and you know that they the jury is business relationship with i media now you're saying the jury could disregard yes and could have accepted that part of the testimony where he said i felt i was threatened where fellows no asked for names of other distributors which was given over by hobby and that he was told that pretty that that plane his business was a fraud and the evidence of causation given given his position given hobbes position but the jury was entitle to to weigh this and assess the credibility of the witnesses though counsel i if i could just shift one moment to the issue of qualified immunity and of course the issue of immunity is one for the court not for the jury ultimately yes and do you know of any state court case where qualified immunity was denied for a reason other than the following to one fabricating evidence and to a prosecutor acting in excess of their lawful authority or jurisdiction so you say outside of these two right is there any anything that the prosecutor did here in their investigations that would have meant they couldn't rely on the theory of qualified immunity they arrested someone with probable cause they sent out letters they sent out subpoenas they interviewed witnesses is there anything here that wouldn't be covered by the doctrine of qualified immunity if yes if the conduct was done  with complaints against mr conti oh yes no yes that's that's how the investigation began but as as the argument was throughout  the case in a trial by mr coffey was that there was no evidence of fraud or complaints were unfounded yes i'm sorry just yes the complaints were unfounded as to the mails or i may have gotten names mixed up where it was determined that the list of twenty eight names on that list were were not the fraud in there was no evidence of that the evidence and that the investigation should be dropped  so again this goes into a pool this this evidence this whole body the body of evidence goes in and a jury assessed the witnesses and assessed a credibility and found in awarding punitive damages  that there was bad faith and that there was evidence of ill will and when you have been evidence of bad faith or malice or ill will then the state does not state actors  are not entitled to a qualified immunity i can only conclude that the jury loved your client and hated the other guys which they're entitled to do they are and that's why we have a jury system what about apart personal intent not just the fact that it happened not just the fact that the contracts were reprieved if they were and not not the fact that things were said but that that was an intent to cause the breaches because that's what's required yeah i mean but if it can tend to cause a breach as in most situations we get with tortious interference as if there's a single contract and somebody has come in and said things and driven driven one of the parties to breach the contract investigators continued to pursue this action discoursed disinvest a gay should despite knowing that there was no evidence to support that that would have the effect of causing the breaches incidentally it wasn't that they focused on disrupting the contract i mean if you go around telling people that i'm a terrible lawyer then no one would ever hire me if you go around telling somebody that at this gentleman here was a fraud then no one's ever going to do business with him  whether they had other reasons to dock do business with them is irrelevant we have to go back to look at the new york cases but my understanding here is that more is required that it has to focus on a contract particular contract and it's not just bad things are said and then as a result nobody does business well it's in that doesn't that the isn't open up the door to come to to tortious interference no i believe but but but but that's inferrable because you're never going to get somebody good get up on the stand to say yes i deliberately told them these things so that he would not do business with them anymore i mean if we had this smoking gun then that would have been established during trial but obviously didn't his way of proving this was to have witnesses going on to santa say i was told was threatened and i felt threatened because i didn't want to do business anymore and for all these reasons you know that the investigators are telling me that you know this is a bad person that he can't be trusted those are all very good reasons why a jury would find that thank you i want to quickly address two things one the investigation here was not unfounded they put into evidence all of the complaints and documents received the memos that were written through the course of this which did not conclude that there was insufficient evidence and or did not conclude that they didn't want to proceed with indictment until august of two thousand and six there's a june two thousand and four memo at a at page twenty one sixty of the appendix that lays out what the witnesses would testify to and why they believed at that time that they could in fact pursue charges for fraud intent to interfere requires more side correct that is correct we've said a number of cases i jotted down the state law cases and tortious interference on this point montana friend bill kristol brothers are all cases against public officials where the court said there is no intentional interference here there's also a case i want to say to the smith case where there was evidence that the town stopped doing business with the contractor and he said it was because of interference from other contractors and the court said we can't infer that th causation here because the town was independently upset with your performance so even if the evidence showed the plaintiff claims it does which i don't believe it does if you look at what the testimony and actual documents show i don't even think there's actual interference but there is certainly no evidence of intentional interference and he has not cited any new york case law where public officials were help liable for tortious interference with contract i want to make a quick point about the the use of subpoenas you asked if this investigation was lawful the undisputed testimony was actually sought that they actually did presentment for an indictment but the grand jury was convened in calendar and available to the extent that someone receiving the subpoenas wanted to go before they were in jury thank you thank you both will reserve decision the last case on our calendar is on submission soil ask the clerk to adjourn court