ok thank you good morning judge when judge bennett or my name is whitney seller of the gargled ma firm representing shad in his appeal the district court's decision denying his motion to set aside a defending yourself against an enemy with relatively unlimited manpower and resources a mouse a case for codefendant infante actively let go for fifteen thousand dollars in cooperation agreement my client never had the opportunity to you start from the premise that the regulatory investigative powers of any thoroughly funded agency like the f t c are not something that should be casually misused or abused to engineer results that are not supported by the facts there's an old saying when you think you're a hammer everything starts to look like a nail and i think regulatory authorities can fall prey to that kind of thinking often to a fault and i believe that's what's happened here obviously from the record the f t spent fifty s a company called e m p which is the name defended this company and had nothing to do with this revenge website at any point in time before the court however is whether that default judgment engineer by the f t c against my client should have been set aside as loyal and for good cause the merriest defense articulated by my client client namely that he was uninvolved in this because default judgments can often lead to i'm just results and justice after all is the point of the exercise so i question the propriety of granting leave to serve a defendant by email only two weeks after the complaint was filed or the plaintiff made no prior effort to attempt physical service at the act of personal and business addresses it it just documented from my client south africa yes he knew where he lived they knew where he were the records utterly devoid of any effort to serve the pre they identified it is businesses that he work with folks they work with but there's no evidence when you look at the declarations of any of those investigators that they actually left a copy of the cia or even explain  deposition mr infante says that when he told my client that my client told him well great cooperate fully tell the truth we've got nothing to hide there's nothing there's nothing to worry about and that's when you read mr von teese deposition just when that's what he did he said yes email would be available to them as a means of service without demonstrating necessity of the court to treat this alternative service option for them you have to look at the actual emails that the  proffered and when you do that and you look in their moving papers and examine it carefully the greatly exaggerated their recency and the frequency with which those emails were used by my client at all by the being told that there were four e mail accounts that were being frequently and regularly used by the senate and that's clearly not true then that leaves you looking at this one single e mail tribute to my favor trial on the merits wherever possible and so in this case when you look at that one email is very difficult i think to give it the kind of credence that would override to my client and i would submit that there's nothing about the there's nothing about the email itself it was to or from him you can even see the beginning and end of this thread there's no other emails from that account there were ever offered to corroborate that decision the only thing attributing it to my client is one line of the declaration  declaration like this and the point is that mr khatami had the chance to make these arguments to the district court when it the judgment made all the arguments that mr just outlined and the court didn't buy it and reached out to him that they were planning to sue that is extremely incriminating that happened between september th and the filing of the complaint in january th and so i think it's entirely reasonable for a district court the circumstances everything we know about this defendant it's not unusual to think that he's using secret other e mail to communicate in order to avoid having authorities track him down so i don't think there is anything improper about the district court saying that this e mail account making a factual finding which is what it did it made a factual finding subject only to clear error review in this court that mr catelli sent that e mail and that he was the author of that e mail but i think more importantly the one of the bigger factual issues here is that mr catelli doesn't dispute that he knew about the f t c is investigation he doesn't den defendant and conducting discovery in this situation given what we know about him you know would be more difficult now so there was ample grounds for for the court relying on the prejudice prong here and i think that's really one thing that cases was that number one there was no prejudice there was no either prejudice prejudice was conceded or the court said there's no prejudice here beyond simple de lay which is not prejudice but also in those cases there was no not a shred of evidence not a glimmer of bad faith on the part of the movement and here everywhere you look there is evidence of bad faith there was evidence that mr catelli was trying to of the things that are during his argument and the st one is you know he said his client didn't have the opportunity to defend himself in this case absolutely not true the september t communications with him so that it cannot be the case that the defendant can sort of various head in the sand cover his eyes and ears and refuse to find out if he has been sued but where with the record here