trust and grayson consulting these consolidated appeals present to narrow issues which wrongly decide about the trial court have profound consequences in the court below and parties jarvis and chief legal officer firm apapa costa were neck deep in the scheme seems beyond reasonable debate whether the company vision however could be implicated turned on the fundamental question whether they were acting within the course and scope of their employment if they were then a vision could have and should have expected to be hailed into court in south carolina was considering those facts it did it consider the record fact well what we would call discovery facts however it not did not receive live testimony was not in evidence he asked for live testimony or proffer lies testimony you're out of the context was not that there was even allowed the whole thing and i understand these things that you know i have a hearing on it you stand up and argue the case but i also had many many lawyers stand up and say your honor that's a disputed fact i got mr jones yeah i'd like to put on some testimony and you  i mean the question is did anybody ask to put it on a live witness as opposed to presenting the discovery evidence here on that that did not actually come up in the hearing are the white the way don't just get to my point though my point  is that the district court was not considering a roll motion to dismiss an allegation the court was considering a motion coupled with all the facts that the parties assemble and no one has suggested that some facts have been omitted and in that context the court and the plumber emotion has a right to find facts to weigh the evidence and we review for clear air and this notion that it has to be evidentiary is just another form of getting the evidence before the court presented that then it seems to me now the courts and the role of determining whether those facts support jurisdiction or not well and we review that for clear well except if the court does not conduct an evidence hearing as and receive a live testimony we're going assessed as live testimony necessary because that's what the cases have consistently held the case is anything about that national they do not but but the findings out of this circuit have consistently helmsley the cases you point to one published has to be presented in order to make a finding if testimony as we send it by way of affidavit documents and so forth in other words if there is an inadequacy of factual presentation and you made a request and said i'd like to put on ex a and b in the courts as no i've got enough you've got an argument but in this case the facts are fully presented there's nobody claims there was an omitted fact and the fact that somebody didn't present an affidavit with li testimony to me is in consequential for the purpose being served on what you're doing there is imposing a burden upon the plaintiff which doesn't exist alternately a burden we have that we face this same situation  hands and say you have got in every instance to have live testimony whether you think it's necessary or not i mean we don't we don't do that on summary judgment motions richard  constitution and so you cannot preempt juries right to find facts but the motions with respect to jurisdiction are court matters for the court to decide and the court can resolve any way it wishes under the rules that is they can take evidence affidavits conduct discovery limited discovery and or the parties theoretically could stand before the court and agree this is  and then the court make a ruling the real question is if you were dealt with in justly because there was an evidentiary hearing the question is you'd have to show you wanted to put on some evidence and proffer  it or the facts that are presented to the affidavits are complete but i understand in this case this particular case the facts are performed the court the discovery was complete there was and nobody has suggested that there was a witness clients go to court know and all it has to do is show a prime a face she case it's almost to get as if the court's going to decide it without facts but when the court decides a matter with facts you're arguing the record is clear that the vision itself did things extraordinarily more amplification than total than total eclipse did for example leaving aside for a minute that the chief executive and the cheek chief legal officer sent emails then under their leadership also assisted then the transfer of bancroft's one of the clearly implicated entities to cyprus and then proceeded to liquidate the entity it dispersed  s it relocated the documents of bancroft's all of this under the office under the auspices of vision those were not those not total eclipse issues the connection you have to make is that if total eclipse isn't l based upon the record that vision got money for consulting fees we do know that and this is where you get the basic point when the c e o and the chief legal officer presumably at the helm of this organization do things repeatedly and profoundly at a certain point in time the actions of the of the of those executives become the persona of the company now the judge made a judgment call without all the evidence in front that that in fact this was evidence he had affidavits what evidence did he not have what he did not have the live testimony of witnesses certainly that's just a form of it but it but not really because if that were true then to say i want to put on evidence you know that was not the context and then that's i know the context i was a district judge i had many of those hearings and i know exactly what happens we schedule a hearing and i call on a plane and i call the defendant they ta and defendants if they didn't think the record was complete would say the record is not complete i need to put some evidence on or i need to take a deposition and present it but your honor is we know it is we went into that hearing we look at it we know look at this point it's a pri heard that's what it is i'm a fish it's way beyond that well but actually in whole you have argued facts the primer for a show relies on the allocation of jurisdiction you get a benefit for that if there is no opposition but once the record is developed on this now you have a bundle of facts and the court has to look at the motion and the facts and make a determination and in doing that it can weigh the facts it can balance and make findings of fact and if you want if it put on have you put on evidence but i must say it seems to me in a case like this would be a waste of time to put on witnesses but not without with all due respect and i have thirty seconds here not i'll try to be brief the cases and this is come up more often than you think evidentiary hearing but they're often referring to the fact you have a hearing but the main thing these courts are referring to is the court is resolving facts as opposed to based on the pure allegation but if you allege jurisdiction and s forth the problem the face you get to rely on that but if the other side comes in and lays out the facts and you put in facts now it's a factual fight but if it's but if this a confession but if this conflict in facts which is the bare minimum they are here the court cannot resolve it without li testimony before you sit down with you certainly extended discussion about this evidence for a bird in the hearing below and assert the judge on notice that you thought you were entitled to a no sir because it's not it's not the answer is not a simple answer or you know the supreme court has said the district court's role is to resolve fox and they can resolve facts on these preliminary matters based on affidavits alone and do that is their role they can make credibility findings without looking at the best body it because because if you all of the court is to resolve all facts that it needs to to make the decision but if it can't do it on the paper fax it hast because in fact they conflict it has to do it because then they're make a decision then as between just like any fact finder does who says you have to look at the witness in the face well much like in a summary judgment if there is a dispute issue of fact you cannot do it on the papers it has to be known with a live testimony well that's right i think you're honest thank you got seventeen minutes now thank you your honor brian duffy here on behalf of at the moment vision international people group public limited addressing the  your honour's the district court did not air in in making its findings and is unfair what is being asked of it by the appellants the appellants had five years from the time when they first appeared  when vision first appeared challenging jurisdiction the court denied it without prejudice in two thousand and eight in february allowing jurisdictional discovery five years later we came back again to nothing the question is were they able to put in all the facts that they wanted on this issue were you able to put in all the facts you wanted on this issue absolutely what was what was before the court on this motion what factual matters the  it yes sir and then you came to court you argued it all the facts everybody made this counter arguments and so forth yes or and there was no there is no limitation on what could be presented as our discussion about the standard i don't recall specific discussions of the standard but just as this the appellant's would fail to meet the burden no matter what standard appeal is applied in on every step of the jurisdiction allows us for specific jurisdiction in this case i don't know that there is specific discussion of the standard i believe i may have mentioned that they can't meet either one whether it's preponderance or whether it is prime official and that's just and those to be difference compared at all or some heavier clear or clear evidence or reasonable doubt beyond a reasonable doubt or whatever but i don't understand a prime aphasia case being in the same class as a standard like provider evidence is just a different stage of the proceeding i think that's true your honor in fact of the prime aphasia stages as well as your honors know from several different types of cases that means you have met this first part and a burden is now on the other side to produce the great danger is it we're going to just move fully over complicated what is a threshold determination on personal jurisdiction and subject or even asked for it and we would be hamstrung in district judges to say well no matter what whether the parties asked for it or not you've got to have live testimony and oh by the way we're going to hit you with a proof scheme too because even in the title seven appeals in reviewing the no vote to simply ask whether there's a genuine dispute of material fact or whether there's an issue of trial factor was not given the advantage to that on prevailing party in the summary judgment context putting down laying down hard and fast rules about no matter how strong the evidence is or how clear that the record is you've got to have a laugh testimony even in the absence of a request for the same  and make a mess of it sometimes these these determinations are threshold determination yes your honor that i think that's exactly right wilkinson and this is a good case to show that because there is no other evidence that was going to be submitted there was no other witness who's going to come challenge something for jurisdiction the facts were set forth before the district project you've got to have some discretion in those sorts of circumstances to go on the record americas there is no contact whatsoever the only question is a few emails or fax cover sheets and judge norton correctly held there is no evidence at all there conclusory allegations to suggest that that was within the scope and  employment of these people or that it was for the benefit of vision and so he correctly did not give any weight to that because all they were were these these communications which were can conflicted the conflicting evidence for that was where deposition excerpts from the c e o an affidavit from the people involved and the employment contract which shows this has nothing do with it and the annual reports and other evidence that show vision has nothing to do skip jurisdiction and so they were trying to argue a derivative only through total eclipse which would get in a completely other it would get in international law or you know united kingdom law cypriot law those of course  be reasons why under the constitutional reasonable a standard there is no jurisdiction here or shouldn't be exercised even if the other two steps have been satisfied traction move company to cyprus your honor i don't have not become an expert in cyprus business beyond the americans are missing some certainly could be but they're doing well as a publicly traded company in and direct marketing really it's sort of  compare it to avon over here where they have cosmetic and health products and when you're looking at that reasonable standard that i raise is the third point which i don't think you ever get to but if you were to it would be if you look at it in reverse if if officer of avon had been involved with the scheme of some financial products in use some correspondence or a fax machine from avon to send something to cyprus and are member of the cypriot legislature brought suit against avon for tens of million hundreds of millions of dollars and they exercised jurisdiction over avon in cyprus because of this individual officers at random email or fax i think the orphan aid society vs jenkins south carolina case makes clear that under south carolina law the a title does not confer any authority in fact they are the president of the entity who had actually been authorized by the board under other circumstances to conduct the same type of transaction that he later conducted again didn't have authority from the board for that those subsequent transactions and in fact the court indicates that the law is that people dealing with agents must be careful to understand the scope of the agency from the principal and it's just the end is interesting here because no one ever thought vision had anything to do with this not mr grayson who only learned a vision after everything fell apart by doing some internet research where he again judge wilkinson connected through total eclipse of over to vision but none none of the people know testimony suggested anyone thought vision was ever involved by any of the participants in fact transferring documents and the like discovery materials what your response to that will judge he has i guess again to the agency issue which i don't believe it's within the scope or for benefit of vision but beyond that  first are not it's not any purposeful of ailment of vision even if you accept those communications as visions of south carolina or the united states those or it's a second conspiracy much like in the  case from the eleventh circuit where the court said look you've just because you're a victim of this comes to steal blueprints doesn't mean some other conspiracy abroad to sell blueprints gives you  jurisdiction gives the court jurisdiction over the second the members of the second conspiracy and in fact on the first it's in the supplemental appendix your honour's but counsel for the appellants in fact conceded were two conspiracies that issue here even under the way they look at it so the claims would be separate as and that the the claims wouldn't arise the claims against or the damages wouldn't arise out of our client's secondary conspiracy in fact if you look at the first trial which resulted in the monstrous verdict and you look at judge norton's post trial order he delineates exactly how this describes that that is how the scheme operated and one other point was interesting about the first trial is when they were proving how they were taken advantage of and this is the scheme that led to those great damages they never once mentioned either vision under south carolina law is it is an example where there were there are there can be a set of facts that all are before the court where they're not conflicting sworn statements that a lthough one might argue a different conclusion and that instance it was whether there was an independent contracting arrangement or an actual employment arrangement between mr burris and texaco the court  that but that's a that's a very good distinction we give which gets lost here doesn't emaar that that suggesting that because you might be able to get to the jury on a substantive merits an agency case is not the same as whether the court can any question about whether we can review this order this is my question ultimate question no i believe the ones that keynes was transferred mr sander for was outside of this action then all of the claims against all of the parties in this action argument because all the questions about jurisdiction i am here to argue the whether or not in south carolina there exists a cause of action for aiding and abetting fraud also i'd like to introduce to the court r carolina there exists no cause of action for aiding and abetting fraud period and of art pilots in their brief acknowledge there are no cases in south carolina that set forth a cause of action for aiding and abetting fraud the responders agree through our court also agreed there are no cases that reject it outright that's correct so why isn't this a matter for the south carolina courts it may be  supreme court he didn't ask for and there's no count of varying caravan on federal issue as to why the court should try and expand state law to add cover it clear and convincing we don't know the answer those questions my time was up i'm glad that answered questions main point is three defendants went to the jury on four cause of action and the jury found them half of for cause of action for the three defendants like one when you have a scheme like this and you've got the you've got the principal actors and then you have the support the secondary actors know us but they're not dealing directly with or making the representations you can't just say they get a pass because they didn't speak and that was the oregon we may with judge norton at a dinner in a betting fundamental as a fundamental principle has to exist because otherwise the only gather gets in trouble is the one that opens his mouth and the others go scot ninety six years it's been on the books says anybody who aids countesses or assists a fraud is guilty of skin of the tort is guilty of the tort it all of this is taking that basic bedrock concept and say when comes to a fraud you can't aid and abet a fraud if he had done nothing more than saying it's not just making a false statement misrepresentation is aiding and abetting those that do that would have solved the problem in this case he took eight inventing off the