to start by thanking the court for granting this request oral argument making this the first time in the seven plus years of this litigation that there's been any oral argument on any substantive issue the court has a very simple task today to determine whether waste management's allegations were sufficient to plausibly allege rico violations by the defendants for this to move on and whether the summary judgment evidence which it has been able to gather was sufficient to raise issues for trial stated differently could reasonable juror or as believe what waste management alleges and is prepared to prove obviously if they could the district court's rulings must be reversed and the case must be remanded for trial is been a difficult journey as it is undoubtedly for most plaintiffs trying to prove a rico conspiracy very briefly there was an eighteen month stay granted to the defendants because they said they were being investigated by the local u s attorney's office which state ended only when that investigation was in the words of judge feldman in the us versus  that investigation was abruptly publicly aborted following the implosion of the u s attorney's office as a result of soof which were filed in state court by one of these defendants a second then there were three successive twelve six motions by the defendants over the next four years no answer and no discovering the almost four and a half years after the suit was filed comprehensive resistance to discovery that led to a motion to compel a first motion for summ judgment at seven pm on the evening before the hearing on the motion to compel the court's all about the motion motion for summary judgment for four months decided it was premature and three months later there was another motion which is granted and is before you at bottom this dispute between these parties is over the issue of causation which in turn rests upon the credibility of certain witnesses and the inferences to be drawn from mountains of documents one might have thought that such matters would be for a jury to determine such competing issues of causation and credibility are virtually always the exclusive province of the facts under not suitable for a no trial resolution  parties are talking about proximate cause and all that these rico cases out there on proximate cause i mean isn't the question its resolution might not be simple but isn't the question just whether there was evidence that would show nagin was bribed to serve that would allow a jury to find that assert and then if that is the case that's clearly a proximate cause of the harm well out you can use but for you could use proximate cause all those terms are thrown away out we all know what that was like in our courts class and i don't to wreck a walk through some of these facts that we think the jury could believe that from if you don't know what i'd like to do and then i'll talk about what the district judge did about all this throughout the motion practice the defendants have had some on if you want to talk about mr mcdonough let's focus just on two thousand and six as a lot of stuff in his record but mr newton is two thousand and six when all is said one of the things that they say is he did almost nothing as to this landfill that's the defendants and we use him just for information so he writes three letters to three different federal agencies one of them one of them he copies that in the office their position is we don't know whether they can read that no we don't that could a jury believe that he might have in the middle of the train i would think so yes why did he mr mouton then write to the corps of engineers asking for a meeting in gene and then why did he report back to he be at length about  connect the mayor's decision not to renew this particular executive order in august of two thousand and six to mr we talk and i don't i'm asking you to point to me where where that's good but let me just say that remember this is in the prism of what a jury could believe from this not what we've proved today but for what it jury could believe from what's here and i know your question is extremely valid i'm going to address that was it the  twelve b six and i'm pledge ask that because part of the problem legally is that at the twelve the six motions stage and there were three of them the district court decided that there simply wasn't enough plausibility to them pleading about what with respect to the landfill not necessarily with respect to paint himself but the length and the end having taken that sort of out of the case by granting that motion what's left is then the summary judgment with the rest of the and let me let me mention a couple things that i haven't gotten to yet on in december of two thousand and six it's after the fact that it's two thousand and six mr mouton wrote an e mail to defend and he and he's talking about a federal official and he's going to meet with and he says this federal official and this is a quote text is a record eight one one one was very in all caps happy with my work trying to shut down the chef highway landfill now you may say does this involve naked himself our entire point is it doesn't have to if you leave if the twelve b six decision is wrong and if there was enough any pleading stage to say look mouton is part of a big operation here that's ultimately trying to produce to shut down the landfill but this doesn't have to be it doesn't have to be connected to nagin at that point and then judge in the heart takes that out of the case and never thinks about it again apparently when you look at his reasons the reasons are for this summary judgment which is really obviously the problem there a little over five pages there are seven lines in a quote analysis and he doesn't go back and mention mouton and the pattern and all that i noticed that's the second time you've named a district judge by me this morning and it's eleven times and by my count in the brief and i'm trying to understand what connecting him to the line and i've got all of that but i probably won't have time to go through it and then that being out of the case and apparently not available in the analysis of the summary judgment he didn't finds a summary judgment to be i guess easier to grant allegations out and then we had left a again according to the defendants eight quote megan sup klein and we think there's a lot of indication that the jury can believe from that but nonetheless we were as we  by the time we got to the summary judgment because he already taken that megan having them moved on stuff out for us that's our legal complaint and so then you say well let's if and you ask because i'm going to purcell pursue that you know what's moved tons connection to what the mayor did well what would the jury think for example of the fact that mr mouton received from the defendants two days after the cease and desist order was issued two  the other than the an unusual coincidence that after he has spent the better part of two thousand and six writing these letters having these meetings all aimed at the landfill the landfill vian gets effectively shut down and all the sudden he gets a thirty to the largest of all the sons he gets two days later we don't know why that happens is just like just to jump over an egg and for a minute you may recall the facts and you obviously have studied them which is great the facts are that five days before the nagin reelection campaign and through shell companies you've read this they make twenty thousand dollars in illegal campaign contributions today five days after the who was at the meet what did they said what did they plan to do because there after there is a lot of contradictory information coming out of the mayor's office and let me just mention that very briefly since we're on that here is the campaign donations of nagin yes what we know about now and of butan obviously who participated in this process but they're right that the bribes that question you know one of the things that they've said all along is gee the mayor never said the suspension would go longer than six months you're talking about something was going to expire on its own he never said that i want the court to look at the water half and that they would in the executive order you absolutely right but that the the statement that they make is he never said the suspension would last longer than that but let me just walk the court through this at about the same time because this has to be permitted by the d e q is well in zone in locally that the they have to file an emergency disaster cleanup site requests so on february fourteenth five days after the executive  on this form requested time span for activities the proposed time span will be the duration of the hurricane katrina disaster cleanup efforts at this time estimated to be twelve months and while it's responsible for this view in february is he selling he's telling the d e q the cleanup is estimated at this time to be twelve months now our colleagues at the other table quote a part of this twice in their break they say the proposed dams timespan will be the direction they leave out at this time estimated to be twelve months we think that's very important if he quote never said the suspension would go longer than six months actually he probably said that and he signed that separately and so time goes on and he's issuing a press release on june the thirtieth say in the site is clean and good the test results are good tells the council on june twenty seventh the state of the emergency continues to exist so here we are in late june coming up to some very important dates and then if you look between july the fourteenth and august the tenth mayor nagin in a city attorney and the d e q are going back and forth in a process of correspondence that is totally contradictory and actually from that correspondence on august eleventh d e q is convince that the mayor is ok with that continuing same on a saturday since an e mail august the twelfth and says good we'll continue funding and then by monday morning we're going council members and i don't want to i don't mean to interrupt but i want to make sure we get it clear before we move on through the timeline the conversation from the mayor's office after the expiration around the expiration after he declares that we're not going to renew the disaster declaration is we aren't oppose we the city council or we this mayor's office not obvious to me don't oppose d e q permitting the site which they obviously could have come up to it it is going to be august nineteenth you can find in the records several places record eighty three fifty eight is such a place she's trying to explain what it is that they meant by saying they're not going to rename and she says please be advised that allowing this executive order to expire is not intended to and should not be construed as an expression of the administration's opposition to  am and four hours later at two thirty the cease and desist order comes out now why did all this happen the way it did that's what we've been trying to find out and we think that's a jury issue and a see that my time is on this part is just about t they please the court the district court's rulings were correct waste management could not allege or in one case show a causal connection between alleged predicate offenses and the closure of a chapman to a landfill the district co didn't plow any new ground or decide on the rez nova questions he simply applied the settled rule that whether on the rule twelve or rule fifty six speculation and the mere possibility of causation is insufficient group to get an award of damages waste management had to allege a plausible causal link between payments to henry moved on and the closure of its landfill and it always alleged from the very beginning that the closure was due to act environmental agency and the federal he certainly it was argued he certainly wrote letters to them your honor he wrote letters to the e p a the corps of engineers the u s fish and wildlife service and there was no allegation and ultimately with the benefit of full discovery no evidence that any of those state or federal agencies did anything to close the landfill there's not even evidence that they took mr newton side and pressured ray nagin to withdraw the emergency authorization there box is an incorrect when they got full and broad discovery relative to henry moved on in fact they asked for it to taint an extra two hours so we had a nine hour deposition it was due to on my client's receipt hours of questions about m documents were exchanged relative to all e mails faxes payments to mr mouton so there was full discovery which is why mr johnson can argue now based on the record evidence again it's not baier but he's citing mouton evidence he got full discovery on that discovery though confirmed that the allegation was meritless and certainly had the uncovered something in discovery they would have amended their complaint to put it in their discovery  there was no causal link but again the idea that this claim was permanently removed from the case for any and all purposes is not correct let's talk about the nagin ruling it summary judgment there's some evidence of the record that the regulators were surprised other people said there do was this great need for debris removal which needed landfills is there any reason in the record that's been stated why the waste management wasn't allowed to continue for the even if i understand your argument didn't have a right to because it said six months of putting that aside why not what was the reason they weren't allowed to continue you know the reason was because ordinarily in new orleans zoning is a matter for the city council and the city council had been agitating for a while they didn't like the state of emergency it's quite an extraordinary law it lets the mayor usurp council powers override ordinances at least during the locally declared state of emergency only after that period is over the mayor's power evaporates with the city council itself had passed a unanimous seven zero resolution in april two thousand and six before the campaign contributions to cry in allowing this landfill to come in without going through the ordinary process public hearings you see this this site in new orleans east had been i by landfill developers for years they tried in the late one nine hundred ninety s the council refused a conditional use permit waste management was looking at it again in two thousand and one years before katrina headed under option and so when this this katrina struck they saw an opportunity hope to get an exemption your own you asked about the need the need existed on february ninth of two thousand and six and the mayor said i'm giving you six months the fundamental problem was waste management didn't do it there was a miscommunication again this is months before any campaign contributions and waste management testified that they were to find out that the mayor three contributions had limited the exemption to six months and ultimately they are presenting an argument here based on what i call the reversal narrative that before the contributions the mayor was i'm sorry i'm out for whatever hearing on it did not because ultimately even though the agreement that waste management signed in february two thousand and six required them to apply for a conditional use permit that's the zoning permit needed to put a landfill in this light industrial district they didn't do it and they didn't do it in in april when they found out about the order they didn't do it in june when on an internal meeting agenda they wondered how do we keep it open beyond six months order they've they've finally applied for the condition of these permits only after receiving the cease and desist letter on august fourteenth of two thousand and six because they knew they had no support some disputed they had no support in the city council but when they tell you that waste management understood it would have a long term zoning exemption it's important to remember that their understanding was born of error they didn't realize that something that is independent of the river bridge into the city attorney didn't the state regulators and others think this was going to last beyond that period into did not the city attorney in fact penn you moses field who was not implicated in any alleged wrongdoing she said no it was a matter of six months  when the city wrote to them it's a bit look we're only sane not that we oppose a landfill but that the mayor's exemption is over they need to go to the council under our law the city council is the one that issues these permits and the mayor post contributions said i don't oppose the landfill they need to go to the council though in fact the mayor could not have given this multi year zoning exemption he didn't have the power to put in the power to give the additional six months up to the year of emergency his power terminated on december three of two thousand and six he has a power for an additional six month he could have done it there would be no legal bar but the point is if we're going to have a reversal narrative i think it's fair to ask waste management where in the record the mayor take the position that six months was just a start we asked our thirty six representative tim hawkins who was involved in various meetings to the mayor tell that to you he said no he didn't but other people were involved in those meetings without me sometimes you might want to talk to them ms olson mr marks and mr function and so we depose them and none of them could say that the mayor ever indicated promised expected that six months was just to start again to the extent there was a need there in august notified noted by the d e q there was a needed to warrant an exemption was limited to six months and the council was clamoring for that to end they were clamoring for the state of emergency to end because again jurisdiction to allow a mayor to usurp councils functions that's just out there but even on this record there is no evidence from anyone not from city personnel again as moses field was questioned and she said no there was never glad you asked the question because in in louisiana a bribe is a unilateral offense so someone can commit a bribe with a corrupt intent in giving money and yet they could never have had a conversation much less an agreement on  so i would acknowledge that would be a factor tending to the existence of an improper payment what i want to emphasize giving too much money and not disclosing the amount of money is not a predicate offense in the rico so they would have to have shown as well this corrupt intent but it says nothing about mayor nagin side of the equation and that's where the judge clarity you emphasize that he denied taking a bribe would be pretty shocking if after years of fighting his criminal case did but the what about the concealment of fact that they're using shell companies as common in criminal cases if you're hiding payments that that we that it would allow is the argument or inference that you're hiding something because it's something untoward in the  transfer itself i would acknowledge the point in general but it tends towards what the river bridge defendants did it doesn't say anything about mr nagin it's not it's not as though mr nagin was in a room and told on his side you got  documented judicially jury and judicially endorsed history of bribery no i just in that but i don't think that by virtue of a totally unrelated conviction affirmed by this court someone can assume that there's almost  presumption of causation again in this case i think the causation would require something from mayor nagin we're giving him the benefit of circumstantial evidence we're not hardly asking for a confession but to have a reversal a position to have causation which again the criminal rico statute would require but civil does we need to show at a minimum he would have done something else but for the causation if he never said six months is just a start and not even to city employees who could where there's a me i noticed in the brief that there's a there's a statement that the original executive order the february ninth one was never recorded and  seems this seems an inconsistency and i'm hopeful you can resolve it it's in the executive order itself it says that waste management has agreed to seek this permit so it sounds like there was consultation and that they're aware of what's going on and on the other hand they say we had no idea and it records i recall is relying upon a hawkins affidavit who said waste management had people who checked after the fact and they didn't see it published which i understood to be published in the official journal there's no record evidence either way as to whether it was published journal which at the time was probably the new will instead i'm speak you but we know that the city council knew about the existence of this executive order zero six zero three because of april six they passed a unanimous resolution condemning it and we know that the mayor obviously his office were aware of it because in may again before the contributions they amended that executive order centrally to suspend it for a couple of days to allow some environmental testing with a public meeting before this city council resolution  it was at a public meeting yesterday and so again we have this idea that again well maybe six months was just a start the city council didn't think so waste management didn't think so again their meeting agenda how do we keep it open beyond six month water i want to mention something i heard mr johnson say that may have been just a mistake or maybe i misheard him i thought he suggested that there was a mayor a meeting between mayor nagin and my clients after the contributions and that is flatly incorrect there was no meeting there's e mails suggesting there was an effort to try to talk to the mayor about whether this shipment or landfill could accept as best as containing materials and usually that has to go in the subtitle of the landfill one that as you can imagine is built an engineer to take potentially toxic substances but there's no evidence whatsoever that the effort to reach out to the mayor was successful so not only did they not meet they didn't office does suggest that they communicate directly right well that is the diffidence in the mayor i recall that the letter was a rejection of a solicitation to attend a fund raiser for the mayor and in that letter which again  you can imagine after many years it wasn't sure was it even sent but there was a rejection a declining of an opportunity to contribute and the statement was we have made our contributions in the past to the mayor on a direct basis so we had no  there definitely was a phone call from the mayor about two weeks before the election to jim ward the mayor suspected that again you didn't have a clear recollection he had been given a list of people to call and he called jim warden thought it was a prank and said i need your help on the campaign i'm just going people they later discussed it decided to make a contribution there was no suggestion there was any discussion about the shipment to a landfill and on that point i just want to point out we heard my friends on the other side say that various points in june for example the mayor said that the landfill was safe but this is after the contributions the letter in august to d q we don't oppose the landfill which is saying that the mayor gave six months this is after the contributions so not only do we not have a reversal in terms of promising more time we have a mayor who is still saying the landfill is fine i don't quarrel with the dea has justification for it and the landfill was safe whereas you if if this reversal narrative had any facts you would think the mayor would have changed his tune after does make it look like a a fairly abrupt change well you own it and to me the idea that it was an abrupt change i think presumes that he intended something else and again from february now i'm six months was in place and there's not a single witness who can say well no that was a start that there was some talk about this d e q form the evidence is undisputed first of all that it i that is part of the state level approval of a landfill and pen you moses deal testify without contradiction and local permitting and d e q this process are two separate things one doesn't have anything to do with the other but it is a representation from the city it is a representation to the city to the d q same open it up we understand you have a need but it is not a representation first of all that the mayor changed his mind just five days earlier from executive order zero six zero three it's not a representation about whether this is going to require a conditional use permit which waste management agreed to do the deal if you didn't think that they were one in the same deep you was aware of the executive order from the beginning and they knew there was there was no suggestion that this was a tacit repeal that the mayor silently changed his mind without telling anyone again the executive order was amended in may to facilitate some environmental testing amend immense executive order of six zero three if the city was going to many second of water to suspend this operation for three days to facilitate environmental test how unreasonable is it to think that it would have been changed from six months to a year or some indefinite period but no one would have noted that and not only that there's not a single shred of documentation on the waste management side meeting those for example nor when the mayor said when they found out rather there was an executive order in place that limited to six months you would imagine there would be some panicked emails how could this happen we have vested a lot of money in this landfill we were told not a single that was not the intention need to it and it was no thought to contribute until the mayor called and requested and the thought was sort of like in mcdonald versus united states we want you know some general goodwill if we have a problem because they were had resisted this landfill before and then saw it coming after katrina when that community of the vietnamese refugee community was very heavily impacted by katrina and they were irate and yes waste management i'm sorry river birch did financially support had any clue he didn't ask for an amount much less by company he just said i need your help in the campaign i see my time's up we would ask the boy to affirm this is two points well reasoned ruling says i just want to remind you in the campaign that we gave forty thousand dollars last year and heard anything else about that but the letters in there it says yeah we gave twenty we sent it over directly so you'd know it was from us and we gave forty thousand last year and that's in  letter you'll see it and then the question about you know the use of mr tun in the use of meghan that's a come up frequently is something i didn't mention and that is that if we think there's not really any connection among all these things i'm wondering why the defendants reimbursed mr mouton about a month after all this happened for his computer he had been advised to deep six is computer he confirmed that it had a lot of information on it about all these letters and back and forth e mails he deep six the whole thing and romano said i'd like to get a check within twenty four hours for three thousand dollars because i had to get a whole new computer system and they sent it i think that's pretty significant then i heard about this meeting and let me just say about the meeting that we're talking about is right after the campaign the e mails go back and forth have you been able to set up the meeting with the mayor and then mr ward confirmed and imma give you the cite here confirm that there was such a meeting its own page eighty four seventy four is what i have in my mind but i'll find it here in a minute mr ward confirmed there was a meeting and we don't know it is fifty three seventy four i'm sorry record fifty three seventy four mr ward says there was a meeting that is our question what it was and it we don't know what was discussed we don't know that i only have a minute but i want to close with this thought i want the court to focus on the present situation about fifty years ago a member of this court judge brown in a famous quotation declared an argument b preserve a summary judgment to find and to fast so it is with the arguments of our colleagues at the other table they are very skilled and their skill has served their clients will over the seven year plus life of this litigation to date it  permitted this litany of facts and inferences from being the subject of open scrutiny and judicial discussion such as we've had today but now we are truly at a crucial and possibly final intersection this is the last chance that the plaintiff will have to present its case to those who are supposed by law to be the ones to hear the crucible of the jury is also the last chance for this judicial system to find out the truth after the abrupt end of the criminal investigation urge the court to do what is perfectly obvious in terms of this record which is there is enough for a jury to hear this case there was