billing and there was no w world so your position mr wilkins is that your clients didn't know anything about this into two thousand and fourteen they had not received any kind of indication of warning that what they w  that was a shot at the ship directly right there in the the letter from the council from the general counsel that indicated to them that there was a problem here indicated maybe a property set work thousand and twelve when the route opinion was produced there was no opinion so you can't have or a lot of there's no reliance from two thousand and ten into twenty four that is simply not the chain that a competitor posing as a consumer posed this question you've been contacting physicians and telling them that for every specimen you send your lab you will pay him twenty dollars how is fees is a lucrative business opportunity and he says that the your clients also receive warnings from the lawyers there and i know mr wilkins characterize those as well is not a big deal wanted but maybe i'm reading something to the evidence didn't show that hugo went in and gave all of the facts and therefore got this advice to say ok to go with it so because it requires good faith reliance on it i agree with that  she shared everything with her orders to include roasting great into this case and she was playing them one million dollars a month that's the level of interaction she had with the law and there's no evidence in the record whatsoever no evidence i mean he does it that he does tell him that you did you did they can rely upon the good faith and that you could rely upon legal opinions and advice received by it regardless of the source of it i mean that's part of the instruction that he does g them against mr jeffs against a party but also asked them against his wife and companies and ultimately against his parents her parents ten year old son two other children  don't think we have any thank you very much  the evidence showed that that could be sustained among other reasons because the defendants in gauged in a legal scheme to pay commissions to independent contractors the endo you got of the state says no other legal so to be clear your honor that argument is about the ph d s and i'd be happy to walk the court through the numerous numerous pieces of evidence from which the jury concluded these were substantially above fair market value but that w sorry i'm sorry i guess any of these theories of be sufficient so if it's the commission theory that would be entirely sufficient to sustain the verdict the ph d or any or the medical necessity any one of these theories would be sufficient to sustain the verdict and secondly what do you believe is your strongest there you know i think there is a commission there in the ph theory have different things than the commission theory is is a little bit cleaner because i think the defendant spent a lot of time trying to claim that they had counsel's advice for the guards ph d s there's all sorts of problems with and i'd be happy to walk the court through that but with the commission theory they never introduce any evidence that any lawyer specifically told them that this was not a violation of the n t kickback statute there is significant evidence that waters warned them the other way that the commission scheme was a big problem and of course that's the clear language of the n t kickback statute which says that you can't pay remuneration to someone for among other reasons to incur to them to either in car it's to recommend that someone have a federally funded health service or to arrange that someone have a federally funded health service and that's exactly what these independent contractor salespeople did and i'd be happy to walk through the evidence that they were specifically warned by that or i could go answer judge winz question go to jericho you asked it certainly no no not i want you to stay right where you are judged by asking you to look at look at these claims you don't have more also or you may want to say well they all just equal was just as a was the weapons indicated sure well i think the court might be able to read a little bit of a shorter opinion if it goes on the commission theory side be happy to walk the court through that one if you'd like and just read the testimony question did you see an issue with paying commissions to the rd party blue wave answer i did it again if you go back to the end you kick back statute there's a prohibition against that they're safe harbors for that and this is not structured to that question and did you talk about that concern board meetings answer identified problems with a commission then there's additional stuff there's the evidence that a contractor is attorney does emily bear and she was a blue wave contractor her attorney notified dent and johnson's attorney that this was illegal you couldn't pay commissions to an independent contractor salesperson it violated the into kickback statute there's evidence and we cite this in our brief that these concerns were relayed both to denton johnson and mallory as well and instead of trying to get an attorney's advice trying to get to the bottom of it the abruptly terminated their relationship with emily barron so she's asking questions she's telling us really this is illegal we're going to do business with her anymore that's not good faith attempts to comply with the law that's trying to brush this under the lug in addition we introduced evidence that johnson hired an attorney and that attorney sent them an th circuit opinion that upheld a criminal conviction for paying into independent contractor salespeople commissions th circuit opinion was important one because it was their attorney who said hey you should take a look at this and two blue wave was actually an alabama company johnson was located in alabama so this created binding circuit precedent  value based commissions then they also also the evidence was that blue wave turned around and the salespeople that it hired were also independent contractors and they were paid volume based commissions of both of those very legal now granted mallory didn't go out and hire independent contractor salespeople but mallory did hire blue wave as is the independent contractor and of course mallory could be liable under the conspiracy theory for blu rays additional violation of going out if it's d l having been paying the p n h about publicly in the federal register that's the clear tax the clear text of the n t kickback statute which creates that exception for employees but there's no statutory exception for independent contractors and frankly i think this case really illustrates the danger of paying commissions to independent contractors because you had all of these improper practices and the dentin johnson i'm sorry no is going to ask you if the defendants were paying the fair market value with p n h e's when there's still a for the provision of federally funded health care services or to recommend the purchasing of federal funds to federally funded health care purchases and that's what salespeople do and indeed one contractor even testified that he was paid commissions to literally arrange for doctors to order h d l and single x tests and of course as well these salespeople recommended to doctors that they order h d l and single access and they were paid these commissions to do so now as to the key n h evidence because i know judge when asked about it let me just comparison and it showed how if you got ph d s it would significantly exceed the cost of hiring a full time full bottomless which is the alternative there's another email that's really probative here that's an email and for the record said if you want  d s instead and i think that's a really probative e mail because it one shows that this wasn't just about you know a good faith attempt to get the doctors to have the blood here's an e mail in which a doctor saying hey i'm ready to use you just give me a phlebotomist and we're all set a says no no let's show you why you really want the ph d s in the jury could easily conclude from that that one this was a fair market value and two that the point of these fees was an inducement it was to get the doctors to order more tests to get more money there's also evidence from some of the contractors who testified you for example have the testimony of a boomer cornwell who was one of these contractors he talks about how he sent a marketing e mail advertising the p n h p s as lucrative and i haven't even gotten into the medicare evidence and of course there was tons of evidence that medicare already pays for process and handling services that these are part of the medicare bundled payment and there was testimony that the medicare bundle trainmen this fair market value for the entire bundle of services but then defendants were paying these people on top of medicare that's important as well because there was evidence that not only did the difference not only was medicare already paying for this but th defenders were out there there their sales people were selling this to doctors as you can take ph d s on top of medicare reimbursement was also the case that medicare reimbursement was always more than the ph d s so of course the die actors were not going to forego medicare reimbursement in order to get ph d s in the defendant's acknowledged dad that dent defended debt even testified that he expected the doctors to bill for medicare visits i could i could beat this to death if your honor wants more but we think there different ways the jury could come up with that one possibility is that the jury concluded that maybe initially when the defendant started out in this scheme they had a good faith basis for thinking that what they were doing was right but as the attorney warnings mounted and came in and came in at a to say that the government could not bring you today correct it's absolutely not correct they're relying on a memorandum from a former associate attorney general st of all that memorandum has been superseded by a more recent version but more important point is that that memorandum makes clear that one thing you can rely on agency guidance for is c n n or and that is is i don't even understand their objection but the more important point here is that you know the agency guidance is it's kind of a sideshow in this case the statutory language is clear we're relying on the statute the statute says you can't pay remuneration to someone for a prohibited purpose  purpose and there's no serious dispute that these are those prohibited purposes so the court really need go no farther than the statute itself that's the source of liability and that to the extent there is agency guidance which is reinforces that they had the guilty mind that they had the see enter i'd be happy to go over this more i do want to talk a little bit about the advice of counsel defense because there's some important parts missing from the defendant's presentation before this court and that said among other things in order for this court to reverse on a jury instruction issue the defendants have to show that their proposed instruction was correct and that failure to give it was prejudicial and they fail on that dimension in about in about three on which they bore the burden when the district court refused to do that that made it easier for them to establish advice of counsel not harder so especially in light of the fact that the court did charge on good faith he did say that the jury should consider the advice  that is known to the defendants from from attorneys and they didn't bear the burden even though they had wanted to bear the burden on this it's hard to see how there was any prejudicial error here the next thing that jumps out about their advice of counsel defense is that they want to charge it as a complete defense that's legally wrong because if you got advice of counsel as to one issue on which you've faced liability at best it would give you a defense as to that issue but it wouldn't give you a defense as to the other issue so for example even if the jury believed that they relied on counsel's advice to the ph d scheme it would be a complete defense to liability they would still face liability on the commission's scheme or on the lack of medical necessity another problem is that if you look at the advice of counsel instruction there's a really important word missing they wanted the district court to charge that if any defendant faithfully follows the attorney device then the defendant is not liable that's missing an important qualifier you have to not just faithfully follow the attorney's device you have to follow it in good faith and if the jury concluded the defendants got an opinion that they liked and then ten other attorneys told them why that opinion wasn't worth the paper it was written on the fact that they followed that advice in bad faith would surely not insulate them from liability that there hadn't been a complete disclosure of all the relevant facts i'm happy to explain why that was right but i don't think the court even needs to get there because there are so many problems with the instruction that they proposed and their request to charge this is an affirmative defense surely was not prejudicial error as to them so i guess what i'm asking is often in similar cases and this to be sure we have a whole hearing where there are instructions offered by one side and then  was discussed over an extensive charge conference and at the end of the charge conference you can see that from the transcript that the district court with clearly looking at the written instructions they were number written proposed instruction they were numbered instructions and the judge goes down as to each one he's not giving he explains a number you know number twenty here's why i'm not doing number twenty one here's my problem number twenty except so i think that discussion in the transcript makes a little bit more sense if you also have the proposed written instructions in front of you and they are in the record  erroneous because this court recognized in the drake for an opinion even if you get a counsel's advice and maybe it might be reasonable to rely on it for a period of time if a later attorney later tells you all the reasons why that previous attorney's advice can't be relied upon anymore if you continue to rely on that st attorney's advice who told you what you want to hear you you might no longer still you might no longer be legitimately relying on the advice of counsel and the defendant proposed instruction again was would have just given you this complete defense language so as soon as they got one opinion then they could have closed their ears off to everybody else who told them that what they were doing was wrong and i would say how does it start with me an issue of was it was it the government's duty to to  show that the defendants didn't fully disclose this everything to the to their turn is so i think in order to whether or not they get the instruction the district court thought that there hadn't been a complete disclosure at the relevant time and i think it's important in this court case law does talk about how you have to get the attorney's advice before you engage in illegal activity the only thing that they have pointed to in their brief that predates the whole scheme was this two thousand  e mail that mallory sent and gets forwarded to attorney patrick heard patrick curds e mail which the court can see it's in the record it's a qualified opinion he says here's my initial take i want to think about it some more i want to go read some stuff and then there's no evidence an mallory draft her position statement on p n age her position statement concluded by saying this doesn't violate the n d kickback statute in the false claims act heard response and he says i've made some corrections he deletes that statement where she said it doesn't violate the n t kickback statute in false claims act he deletes it and you can see that in the red line and instead he says well it complies with some of the requirements of the safe harbor and that's all that he was willing to say so i think it's particularly hard for them to say that patrick heard somehow bless this and that they relied on counsel's advice from the very beginning i'd be happy to address any other questions i know there's a lot of issues in the case but otherwise we would ask this court to affirm and be very much that means sure over a minute thank you very much