or arbitration study the complaint alleges that the studies and gauging these frauds in many different ways and targeted many different actual perspective victims including u s investors  raised through wells fargo is the trustee why aren't they excluded as a consequence of our western associates case which says that only a partner shareholders of center in direct operetta victims because they're not they  are not connected with housing stuff so that was a case involving a single discrete injury to a single group of investors in in that case limited partners and the court said well for purposes of looking at pattern in that case we're going to consider them all together these and esther's had nothing to do with causes that this was years before the arbitration that we were victimized seemed like two different questions the question as shareholders of a company members and the western associates would seem to exclude those as individuals i don't think so you want i think what western associates was saying is that where the limited partners are simply all together with the party that sued and it's the same injury inflicted on the same group in that case it was just a standard fraudulent accounting and the limited partners were all victimized together by the same act this is different these investors were victimized by entirely different acts than victimized because it's done in years and years before they were victimized because the conflicts that these studies circulated operating in the united states that made false and fraudulent statements that period which is an extraordinary thing to do they are definitely not the same as in western associates in fact it's the exact opposite of what we have here is a strain of different fraudulent scheme that they're related as they have to be for purposes of each day's requirement that the pattern has to be book and meaningless and related they're absolutely related but they're different victims and their victimized in different ways and it's not just  does not need to be injured by every single predicate act or part of the fraudulent scheme in order to state a pattern in fact that's normally going to be the case if you have a fraudulent racketeering operation it's going to be victimizing mistake was simply just to say that litigation activities are themselves not actionable under rico that's wrong for two reasons it's wrong both because the statute doesn't have any exception in it for predicate acts and happened to occur during litigation and it's also wrong because as even the district court recognized every court that has adopted some form of that exception which has not included this war has held that it does not apply where litigation activities are part of a broader fraudulent scheme the district court simply i think effectively pretended as if the st one hundred and thirty four paragraphs of our complaint just didn't exist those that's what we allege the fraud outside of the litigation and it's important to establish the pattern and that is the pattern that we're alleging here the district court i ask you to get your complaint very precise and identify what the pattern right and it's stored long beach seventy three dollars endings and it starts with the litigation activities and extended backwards to the other litigation activities and in this case i would actually point the court to its own holding in philip morris and philip morris the court found a pattern of racketeering activity against  single defendant based on only four letters mail fraud or letters that were sent none of which itself was fraudulent or false they were sent by lawyers to individuals threatening more a predicate acts that affected us but there are those are pretty big case was that that was a pretty big case it was a big case your honor but it had a single goal the goal was to defraud the american public about the dangers of smoking in this case yes there was any generally broader level the goal to fraud both the investors the bidders and ultimately cause it's done and we have had in the london a finding that the dismiss all of the factual allegations need to be taken as true and measured against standard of the legal standard so if there was a pleading you know though mr franco here franklin i'm sorry you allegations or your complaint is so clear about separating out what it says is the pattern including in an appendix and it is as as touch caps as question was indicating all about considered to be a pattern because they were part of a larger fraudulent scheme and that is because their support said the mail fraud statute doesn't require actual mailings themselves to be fraudulent it just requires that they be in connection with our opposition to the motion to dismiss and the court dismissed it primarily in a footnote on the grounds that we didn't allege that these other acts injured and that's illegal every year that's the error  there were no from there and all the rest of it goes away if there were no fraud in to be made in the value of the plant everything else is your continuing to crack down  one were never harmed or i guess that would well you know i think that we investors would want to know as the indenture requires whether or not there were related party transactions and those were not reported they do need to know that of the financial statements were wrecked and we have said that they're not so yes i mean i think that's a major part of it but i don't think it's the entire case but it certainly is the case that we have possibly improperly allege that there was katz as you made reference i think church board you did as well about how all of what you read in the complaint is really pound the arbitration in the following week ation matters and that's the way we see this case we've seen an invitation made somewhat after the fact here for the court to go through the complaint in this case and just find things that might be other frauds that can be characterized as something other than litigation but we think the district court approached this case exactly the right way and looked at it  made the correct rulings and we would ask this court to affirm the rico claims in this case have at least three fatal defects in them first the will to pursue the claims generally seek a ruling th half of the award this isn't as though these actions that were alleged by the republican created an entirely liability they did not my clients assets in gaza stop were all confiscated and explo and it's one that if this court were to accept you would essentially be giving them attention to everybody who ever loses an arbitration or litigation to bring a rico claim so long as there are any disputed factual issues set  paper that was transmitted by mail or by wire it's a it's a good that's a great policy argument but where do we anchor it in the text of rico i would direct the court not to look so much of the text of rico were just about every lewisham that happens in the united states where there are disputes over facts would give rise to a potential rico action you can always plead that your adversary what about something you know litigation paper and e mailed it to the governing enforcement of an arbitration or otherwise what does that person have any recourse or is the banality and them and their inability to look under the hood that is the hallmark of arbitration there is a public policy defense which allows people to bring arguments like this up there is rule sixteen which is available to every living and here in the united states if they feel as though an award was confirmed wrongfully in the united states will sixty these issues have been raised and i think it's important in addressing your honest question about that the fact that these issues have been raised they have been litigated have been all of the evidence that was sought to be relied upon in this case has been presented happened in the u k courts as a matter of record i don't know that would be entirely appropriate for me to dispose of as deliberations to the court on their privileged so in terms of why we have the right to do it and we d statements were made on the record the english judge asked questions about them i can't really quote them here because i just don't remember what exactly got said what was said but there are reasons that have been given that are on the record i don't think i should people other tribunals and looked at it and said that it's not and i think it's an important thing for us to bear in mind that the u s district court for the dishes of columbia looked at all this and said it was an interest in that case and came before this court judge ca arguments today there have been judgments in belgium there's now been a judgement in luxembourg there should be a judgment coming fairly soon in our courts have looked at these allegations they've looked at him very closely and with the exception of the one court in england that looked at it and said we see probably official evidence here they didn't enter a judgment in the republican favor they said we see something here that we want to take a further look at sishen was made to discontinue that action but the other actions around the world have continue to judgment particularly in sweden where the swedish courts had supervisory jurisdiction over this war it was not their case they looked at all they said this is all ok with us when when you say it's all been hashed out i mean i understand that actually enforcing arbitration means hashing out nothing about the underlying allegations when you force an arbitration award by its nature it's quite a performance so the only place that anything was trace so we do the international flight we're judged or that's how it gets hashed out and there is a supervisory and judicial function in this in the seat of you know the jurisdiction where the arbitration took place all this evidence was put befor circle they saw all the heard about at the hearing is a multi day hearing that they conducted on this it was nothing pro forma about it it was a lengthy hearing involving the airing of all of these allegations at the end of the day they said the words got so somewhere in this entire odyssey it has become somewhat of an odyssey there has to be something out of these issues have been raised they have been talked about they have been litigated extensively and they've skipping right sorry every underlying case giving rise to a rico follow up why don't we handle that by simply asking whether theories any award or judgment here  entitle to preclude to the fact rather than trying to create this litigation exception in the mail for a statute which i just don't see your i think that's a very good idea and i would have gotten to that understand the war and the circuit in d c to define it similar cases the same things were brought up in sweden fair enough and if i could just fair enough but that starts to sound a little bit more like an argument for issue preclusion which is that in the swedish court the question whether the award was procured by fraud was cheat up and and that should bar well i can address them to the pattern issue and i think it's important to focus on as your honest to during my during my colleagues of argument this is all about something and this is all about the l p g you can make the timeline as long as you want to say that well they did this and they did that and did the other thing but if you look at the complaint it's very very clear that the allegations have to do with the valuation of a single asset that was export ed by the cause of government and how the claims about the value of that i said were set forth during arbitration and then to say that every time the liability number was mentioned in a subsequent pleading whether it be under section and eighty two dollars and for some proceeding in the us or elsewhere but that's a new act of mail fraud it's the same thing being done over and over and over again by the same people with respect to the same potential victims sorry we talk we talking to talk about a pattern issue because it sort of came up in the course of that question but when we talk about occlusion i do think that if you look at the arguments made broadly enough and there is sort of a there are some fairly broad issues that are that are before the court today should this arbitration award be enforced this court already made that decision and so now we're confronted with another action that says will even if it is there should be this rico pattern premised central area i think as you look knowledge on this question about whether the l p g pricing was fraudulent or not it seems a good instinct in every single one of the theories and you know here's the mail fraud here's the wire fraud here's the money wandering to throw in all this other stuff and say well you know what if we didn't say the right we were going to leave it up to you to find fraud that's not the court's job mother's question that was central to that in tribunals around the world constituted mail in the wire fraud they didn't say that any of that stuff was mail fraud they're asking you to find it they're asking you to say well sounds pretty bad so it's probably mailwasher for but those are statutes technical requirements in them and those things were not alleged in the complain if assume for the sake of argument we read the pattern allegations of some compassing all the background stuff at the beginning pattern or no pattern no it's not a tradition as a big damage award it's been more than to pay by the multiple national courts and has put out a case saying that not even the underlying want ability but the fact that they have to defend these enforcement actions because they won't pay a judgment that now several national is the fact that they're being required to pay legal fees to defend themselves against enforcement proceedings on a judgment that is is all well but the pattern can be broader down the line of causation to the injury point i understand and i was attentive when you were asking questions of my of my colleague during his presentation today but i don't want to when you look at this case and i think just got as you said it when you read the complaint it's all it's about feel free to point it's about the valuation of an asset and whether or not the tribunal was misled in terms of attaching a value to that asset for purposes of been awarded damages to a party whose assets were unquestionably expropriated and whether or not there's as a result of that a wall in the linear set of transactions like this is not  are quoted some of them cite the sham right litigation part of or pertaining to right but i think fraudulent statements and litigation are not protected they're not very well it has to be objectively baseless in the sense no reasonable litigant could i'm accepting that for purposes of argument and going to the question of it must at least be a sham it must be sham litigation not just ordinary litigation and not just false litigation has to be sham if if you're challenging the litigation itself itself maybe under antitrust that's what you're doing here right these are underlying mail fraud or wire fraud schemes and to be a violation of mail fraud scheme it has to be something that would not violate the  just nothing's been hashed out the closest to being hashed out i think was the london proceedings and judge toler it's not in the record i would submit it if i want to if you'd like but the judge they argued when they dismissed their case that it was for cost reasons the judge said that is incredulous you dismissed your case because you did not want to final judgment for me on fraud that ended up getting reversed but only on the ground that they had the absolute right to do it they dismissed it on condition of being paid all of our costs rico action predicated on fraud and the fraud is in substantial part securing securing this award right and the question whether this award was secured by fraud seems to have been precisely the issue teed up in the swedish court proceeding teed up under swedish law your honor and not resolved on its back so there's no with also aspects but really the heart of the matter from the perspective of your clients is that they claim that this company was jacking up prices and in the arbitration that was not an issue in the arbitration it was an issue in the subsequent motion that we brought in the swedish boards to vacate under swedish law the swedish court did not make a factual binding on the fraud whether it hurt or not did they look into s they looked into it and they said as a matter of swedish public policy even if it occurred under the very limited grounds available to vacated our patrol award in sweden which are seemingly limited and they are in this case in this group in this fraudulent financial statements that they had submitted that obligation possibly factually in error but entered as a matter of sidestepping the project on fraud allegations and approved by the public policy all we care about is whether the fair was false testimony directly presented to the arbiters and that's all we care about that this is something that's puzzling to me and it has to do i think with these kinds of projects like there if they're packing and goes to the merits of the underlying but but it it's part of understanding what you're swedish court doing and if something has been way over priced it sounded like this we just heard was saying well you know the market is is telling us it wasn't overpriced because people were getting that amount but what you're saying of the pricing goes i more like input based yes rather than anything based on an audit supposedly audited financial statements which we would show now had since been withdrawn by the auditor and the audited financial statements were false and fraudulent because they were what the studies were doing was they were big they had a sham company that they own and they were charging that chant company hundreds of millions of dollars for things that they already had bought and what that means for the investors in the united states is they were told that this i just die down the swedish yes court proceeding as i understand it the ground of decision by the swedish court was that even if there was fraud it didn't impact the amount of the bid by the kazakhstan an entity and therefore didn't impact the amount of the award usion because it would be under swedish was we different principles swedish riordan's approves a very limited record it sounds like an actual determination that you can't show causation there that i actually just heard the other side say they're not raising the issue preclusion so i think where were we where we want to be i would say that all of these to the extent that preserve would be available on demand and we should resolve this case the district court result of that wrongly but i think on the correct basis which is not every case that will end up being a rico case what the courts are trying to do here and i think rightly is saying you can't dress up a single case of malicious prosecution as a rico case we're not going to do that i think where they go off the radar it's probably