party unilaterally up out of its own carefully drafted arbitration agreement when it suits their needs and get a shot of the courts at the expense and disadvantage of the other party to that agreement or will both parties to an arbitra agreement be on a level playing field in march of two thousand and one a fairly peregrine one hundred fifty million dollars broker dealer alleged that appellant mr benjamin had kaka owed a certain sum sum of money think you can assume that we know the facts of the case the issue is whether or not you have met the requirements for malicious malicious prosecution crime you and i believe we have  in particular in stead of california there is three elements to malicious prosecution claim the first one being that favor favorable term a nation of the previous action that's sure that's the difficulty prosecution claim is not part of the underlying claim of peregrine our claim is the fact that they filed this action in state court when they were clearly obligated to arbitrate this case and even the that terminations will not support a malicious prosecution action how do you get around that language i think it has when you are suing about the merits of the underlying action and i agree with you that the brennan case is controlling there's no doubt about that but we're not suing about the merits of the underlying action we are we are alleging malicious prosecution because this case was brought to begin with are you really talking more about abuse of process than i mean it seems like  way you describe it this morning it's not malicious prosecution but it's abuse of process your abuse of process is more is more than just filing merit less claim abuse the process has to do more with filing  simplify litigation would you agree with that fellow yes no doubt but it seems like what you're trying to do is to magnify or to expand litigation i mean if we accept your position then every time somebody  an arbitration award in their favor then they can say oh now i also want to sue for malicious prosecution it isn't every time someone gets an arbitration award in their favor it's every time someone who's a party to an arbitration agreement with out probable cause initiate a civil life in state or federal court and controversial and of the clear terms of the arbitration agreement i mean that's that's a common occurrence is it not i mean in your experience as a stay the action and say ok now go arbitrate generally that is the case but in the case at hand we didn't have just someone filing an action and then you know the courts as ok go arbitrate in the case at hand we had we had someone who first of all didn't attempt to arbitrate at all didn't even attempt to contact my client or to say are you willing to come to court i willing to arbitrate they went to they went to state court and that action was kept alive for twenty four months until the illinois court of appeal reversed the circuit court and then dismissed the case i submit to you that in these facts malicious prosecution in addition you can get the courts then you can go to court under the federal opposition act and get them compel to attend arbitration after the court had sent them to arbitration it came back to the court alleging that my client was unwilling to arbitrate and therefore de asked they district court to  well i would submit that they they were truthful in filing this claim without asking my client arbitrator was totally aside from that aside from that presented all of that they presented all they knew to the court going to repeat i heard your answers questions i'd like to speak to one an initial matter and that is under no circumstances can add pounds to comply with the first requirement of the malicious prosecution also just sit in state court all right then it goes ahead but paragraph not in twenty four months as castle represented but within three months after receiving a response that there was some willingness to arbitrate on the other side and i would like to address that in one moment yes that's true your honor and i'm not quite certain frankly whether you you are going to consider the augmented record file before you and so on i don't know whether to speak to that or not is there anything in that record that shows that  arbitration before filing the lawsuit in the record before your court the record that the judge hatter looked to there would not be a reference to that we filed a motion to right  i mean that's the only record that would be technically before your court then console or also if you assume that we would augment the record it was in that other mentation that would support your representation that   the determination in our favor and also the probable cause what was in there was there an affidavit or a declaration or something in there the entire motion set forth the fact that we had filed an arbitration that we  even set forth in that motion that the n s a had finally after reversing itself set the venue in california because the point of the motion of clarification was to ask the illinois court to consider arbitration in illinois  dismissed on a top be sick so there really is no it's liberal record not only for that reason your honor but it's an exceedingly complex record on a very simple matter which is whether or not there was a determination underlying judgment in our favor which which would which bars of the malicious prosecution case from the inception no fraud one they are going to fraud is waived select speak to that for a moment if you don't mind the argument a pro no not even a word of fraud mention in a talent of response to our motion to dismiss before the lower court the argument regarding fraud the argument regarding an exception to the wilson case was never made washin for clarification when you represented to the court that you your client was willing to go to arbitration yes your honor and at the same time you said that the other side was not executed submission to arbitration before the n a s d he went to california filed a state court complaint that is identical to the counter claim for the n a s d on arbitration he comes here w unclean hands your honor it is part of the augmented record you will find it in footnote one two that motion what i'm saying is quite important but the footnote once the motion just as your representation regarding what happened it's not the actual documents are there that's correct your honor all right but the document is a matter of public record i have the cover sheet it's a document  case number because i cannot see it at the moment from this record but i think it is it is important when when we are dealing with as your honor mentioned at this constant review use of the word fraud the one who asked for it there are letters that he submitted him and his counsel repeatedly asking to go to arbitration and i direct you to exhibit nineteen two what about the california  state court i believe you just did that because they filed the illinois action they pursued it for three years and he was just trying to do that to protect his interests he issues here is that peregrine comes in and says oh well of course we can go file suit because everybody does that but their agreement explicitly says that the parties here with the right to go to court it's very explicit it's on its face nevertheless if they bring this case and they try to drag this out