when that case is called with the attorneys who are going to orally argue come up to the podium and energies yourselves for the court thank you please call the case ok both of you will have fifteen minutes to orally argue mr delaney i'm sure you'll want to reserve from that time the sufficient opportunity for you to r unjust consequence the case at issue here that is primary is loyal if a catholic the primary question before this court is were there no facts in existence amendment claim we proposed to cure one of the elements of the loyola cademy case but didn't judge griffin when he dismissed the third of men to complain say i'll give you one more try to properly plead cause that well i think there's a number of reasons and first your honor the issue comes down to the particularities of the hidden phaeton the standard that judge griffin saw it in little academy it makes clear that there are four factors and the order just written dismissing the fourth amendment point so let's focus on the fourth amendment point and his statement that i'll give you one more try i mean how many times a thief even stated i cases in his or i think there was the issue judge griffin this is the fifth time we've tried to get you going and you in his judgment you've failed so that's what i'd like to focus on what was it about the fourth amend point that you think he was wrong in dismiss well just as we are to collate in our brief the the fourth amended complaint on its own we should have sufficiently state clear the issue and it was highlighted in the state of power as we as we say it's who we are in our brief that but for failure to protect the interests of the client is sufficient to show proximate cause and how  with your honor i think we made it very clear that the compliance counsel engaged compliance counsel on behalf of mr governments individually and mind you the founding partner represented mr going to the two thousand and seven s c c case and a settlement so there was something specific that was alleged in the complaint that would have that they claimed would have been the result here in the fourth amended and the fifth we haven't but primarily the fourth i don't see an allegation that but for the alleged failures there would have been number one no s e c investigation or action have resulted in two thousand and nine or the consent judgment that resulted but it just says that as approximate cause of these failures the f c c brought the two thousand and nine action that's a conclusory statement but it doesn't tell me that the f c c action in two thousand and nine didn't result from all sorts of other things other that other than perhaps a  and the compliance that and this is and this goes to another issue in this case which is it is a key issue the compliance job what the attorneys were hired to do is detail in the fall in this at that moment in time the parties were not at issue it was not a request to stay such that the defendant make further requests prior to the fourth of nine to complain for the discovery the request had been ongoing we did not issue formal discovery under the statute and demanded the file and the particularities question was in front of all of the different judges the judge griffin was so interested in took note of the fact that the file needed to be seized and protected likes renu his request for the information contained in whether it was founding partners client file or mr alex client file did he really knew that request for the production of that material if the  needed it for the fourth man and he stood on his request from the initial filing of the two to four motion for the trial discussed who threw out the case that the request was made it was brief the idea that mr somehow walked away from that request is simply factually incorrect the reality of the situation was the court dismissed the third amended complaint so at that snapshot in time the parties were not edition so and that's what was captured in the record at that moment there was no waiver of rights the reality still remains the demand under the illinois statute was made the entire file was requested and as we sit here today it is not been tendered your honor the that the interesting thing here is is that defendants have successfully played a game of hide the ball here by denying access to the files were being asked to plead amount practice case under a heightened particularity without access to the file this would be the equivalent of pleading a medical malpractise without ever being able to review the doctor's notes in the file we have sought this information since the beginning of the case the record is crystal clear that we have made a proper statutory demand which i would submit holds more legal consequence then discovery issues because the discovery would have been in the school one kate battle back and forth as to the issues of relevance until the case  every effort to acquire the entire file and in the debates in the record it is crystal clear that the particularities sought and the facts that judge griffin struggled with are within the final so the question of whether or not the facts exist is the issue for this court and the answer has never been do not make the issue of whether or not will it have any controls is the case he said i'll give you wine one more chance ok in the one more chance to my reckoning would be the fourth amended complaint not the fifth amended complaint tendered on a motion for reconsideration in other words he he was telling you get it right one more time otherwise it's going to be dismissed because it's a practical matter he can spend the rest of his career helping or trying to figure out whether you are the plaintiff can put together a complaint that will pass muster now and page five of this order honor the issues come down to are there facts in existence the discovery issue was paramount to this case since early on the facts in existence in the file are there the file has never been turned over unjust result the issue is furthering the ends of justice and at this point your honor i'd like to reserve ranger my time  may please the court in the time permits day i'd like to answer your specific questions and address three issues the judge's decision to deny leave to file a fifth amended complaint judge griffin's decision to stay a briefing and decision on the discovery issue and third the merits of judge griffin's decision granting our motion to dismiss the fourth amendment prejudice in some as we explain in our brief mr garlics is asking this court to make radical departure from well established illinois law giving  broad discretion when to accept amended pleadings when to stay discovery and how to properly manage their dockets and mr gunn looks is out also asking this court to ignore  settled requirements that plaintiffs in legal malpractise cases must plead facts not conclusions facts establishing that but for the lawyers purported  that we're testing or as of the fourth it's the fourth your honor and with all due respect to counsel so what in fact the fifth amended complaint which helen still loses in your opinion does the fourth yes but the fifth doesn't muster indeed in their opening brief in this court that page will do if there were sufficient facts in the fifth shouldn't the alan prevail there you know your honor why because first of all the loyola academy test does not even apply here counsel referred to loyola academy as the primary case loyola academy applies when plaintiffs are seeking leave to amend under rule six one six eight whether freely given leave to amen subject to the loyola academy requirements under rule six one six c which is a political here the only time you can amend after judgment is senator which happened here in october of two thousand and twelve judge griffin entered judgment in the case dismissed sing with prejudice the only time you can seek leave to amend after judgment is attard is to conform the pleadings to the proof under rule six one six c so that's the end of that issue if as in the compton case that we cite in our brief there this court said six one c six one six c applies but let's look at the loyola academy standards any way for part test number one they're not timely they're not timely judge griffin said we'll give you one last try and then they wait until after the rules on the next motion to dismiss to say oh now we want to file again so they're not timely to they have opportunities to amend in the past they had two years amount so they had plenty of opportunities loyal academy by the way is the only case i found where an appellate court reverses for failure to permit an amendment there may be others it's the only one i've seen and loyal academy it was failure to amend once the circuit court judge said we won't let you amend wants here for your amended complaints over more than two years they had plenty of time to do this and failed and leave the fifth amended complaint by their own admission in their brief adds no new facts simply changes the fruit bitch of the proximate cause courts have that power as long as there's a timely motion to reconsider courts have the power to busa of discretion test applies here you have to find that judge griffen manifest abused his discretion when he denied leave to file a fifth amended complaint it just cannot be as judge pierce indicated that judges have to let fifth sixth seventh eighth ninth amended complaints so there was no abuse of discretion on the nine leave to amend with regard to discovery the standard is also abuse of discretion here plaintiffs never i underline the word never said they needed discovery to respond to our motions to dismiss today ever file a discovery request no was there ever a to a one k conference no what they did do was serve a notice to produce the file our founding partners the corporate entity and mr gunn looks to be fair said those are my files too we notified the receiver who are under the court order in florida possesses the attorney client privilege judge griffin permitted the receiver to intervene the day that judge griffin dismissed the third amended complaint he did indeed and this is in the record at supplemental appendix they didn't put it in the record before the court it supplemental appendix thirty six that's when mr gunn licks counsel told judge griffin you can postpone briefing on the discovery motion until we're at issue so that issue wa they did raise it again in september of two thousand and twelve judge griffin said let's wait till we're at issue and then three weeks later he granted the motion to dismiss the fourth amended complaint but i am for size they never sad they needed discovery to respond to a motion to dismiss no abuse of discretion there with regard to the merits of this case the judge's decision to dismiss the fourth amended complaint with prejudice where is case after case after case in this court this very court the cell phone case claire associates state of powe the negligence of his lawyer he would have prevailed in the underlying matter let me give you a few examples here judge griffen did just trust a slew the f c c complaint and the dismiss yes absolutely that so that i i know it sounds a little comical to cite this case but the decision of the illinois supreme court that we cite in our brief says that it is proper on a two six fifteen motion to consider the allegations in the complaint and any matters that a court can properly take judicial notice so here we asked the judge griffen to ta ability to look at what the s e c was alleging against mr got lex and compare it to what mr gunn likes was faulting mayor brown for so let me just give you a couple of examples first the complaint mr gunn wakes a service that mayor brown and this is of the complaint pages sixty to a sixty to sixty two paragraph sixty seven to seventy seven mr gunn weeks alleges that mayor brown failed to tell allegation that he makes in his complaint against mayor brown is you didn't tell me that there was a delay in getting audited financial statements but the f c c is allegation against him is that he affirmed that if we misrepresented that he had auditing financial statements he doesn't allege in this complaint that mayor brown told him to lied when vassar's he acknowledges in his reply brief in this court that he did miss  represent this fact to investors that's i believe a page town and when when he says that their words intentional wasn't the intentional misconduct brief in this quote he acknowledges that the f c c complaint cites the misrepresentation of the plaintiff of having audited financial as a reason for bringing the action and then he i quote however it was only because defendants mayor brown failed to inform the plaintiff about ernst and young's too late that this misrepresentation was made we teach our five year olds not to lie you can't blame the lawyer even if it's accurate to say that that were delayed in telling him something about oddly financial statements to save a man and he doesn't allege this in the fourth minute complaint he says in this reply brief to say them that it was the lawyers fault that he lied to investors it's just not the law in this state he does the same thing repeatedly in his fourth amended complaint he alleges that mayor brown for example the lady in getting him noticed to send to the archdiocese of new orleans to tell the archdiocese about some that's the allegation and then he says but for mayor brown stay away i wouldn't have gotten sued by the city in the f c c complaint against him the f c c accuses him of lying they use the but for mayor brown's delays i wouldn't have told those lies but that's what this case is about sees me but doesn't it still feel like when you refer to the complaint in the outside document from the that we also deeply believe in requires fairness and fairness to play tips is to give them for opportunities to amanda complete a last warning and he's had his chance fairness to a defendant is to give them notice of what it is the third accused of doing and here every single decision of this court that talks about the budget for requirement the tests that we're talking about your honor does this fourth amended complaint set forth facts facts not legal conclusions facts demonstrating that but for the conduct of these lawyers i wouldn't have been sued by the f c c and all you have to do is look at the f c c complete and match it to his fourth amended complaint and you see there's no but for relationship at all at all and that's what happened in claire associates and many other decisions of this chord in clear associates for example if i could just talk about it for one minute and i'll rest on our brief signs on other issues in clear associates this court affirmed dismissal of a legal malpractise complaint in that case claire associates was asserting that it had a binding loan agreement with northwestern mutual binding onery northwestern mutual said no claire associates hires george contiki and his partners to file a lawsuit against northwestern mutual northwestern mutual makes a motion to dismiss saying we don't have a binding loan agreement claire associates lawyers failed to respond to the motion sickness failed to show up at the hearing a motion to dismiss dismissal of the underlying matter is ordered lawyers fail to follow a motion to reconsider it sounds from the opinion like the lawyers affirmatively lied to their client and said this case is still pending no notice of appeal now practice cases filed there i like this case clear breach of duty clear negligence this court said in looking at the underlying long documentation between northwestern mutual and clear associates there was no rape that this was a binding wrong agreement there for no matter gobsmacked yet again that the defendants in this case are so desperately outside of the record they're asking this court to attempt to subjectively look into judge griffin's head as to what he was considering when he reviewed documents and he's arguing the c case the council has done here is illustrated that facts are in existence he suggests somehow that it is not a proper allegation to suggest a compliance council delayed in doing their job what he fails to talk about is that the attorneys that mayor brown wrote one law were hired to do the notices they were hired to monitor the auditor they were hired to compare to compile to draft and prepare the disclosures pursuant to the f c c regulatory framework more than pursuant to the f c c regulatory framework in accordance with the two thousand and seven case they represented william l gunless individually on and from two thousand and seven to two thousand and nine it was compliance council's job to monitor the auditor with compliance council's job to prepare the annual disclosures it was compliance council's job to notify just like advise him to prepare disclosures and get the notice thinks notice is out to the quadrant of hedge fund investors this is the case counsel went into multiple issues a fact which ar osa result or the result was the f c c alleged notice issues with regard as counsel pointed out to the archdiocese the f c c came in on a complaint alleging that away absolutely judge absolutely and if you look at paragraphs fifty seven through sixty as well as sixty three through sixty five we highlight all of this but the key point is what you're saying governments in this case lost his company he lost his home he lost one hundred percent of his assets himself and his wife and as we stand here today we still have mr go let's under this asset freeze the other point that counsel is ignoring and hiding from here is as we articulate in our brief the receiver has brought a professional services case on behalf of founding partners in broward county those facts and that case is ongoing and as we stand here today  so back to the standard i think judge lou you were absolutely correct rule is controlling here that there can be an amendment after a final judgment so we have not been boxed out from from that but i have a question  just going back to what is from the complaint is mr comments alleging that the negligence the purported negligence are omissions are negligence related to the two thousand and seven deceased and cease and desist order or there are other aspects of compliance other than the seventeen a two violation specifically noted in the cease and desist in other words is the s e c complaint in two thousand and nine roger then the two thousand and seven cease and desist order is at the same it's hard to tell from the complaint that's why we're asking what are some of the reasons the f c c brought a complaint well the it came down to it is to simplify the issue to answer the court notice it came down to disclosures of notice pursuant to the two thousand and seven settlement agreement there were heightened disclosure standards that mr gunn likes agreed to he was represented by mayor brown they negotiated the settlement and they continued the representation after the two thousand and seven case those heightened disclosure standards and those notice requirements were what mayor brown was engaged to be compliance counsel on their job subsequent to settling the matter was to ensure compliance with all the heightened requirements that emanated from the two thousand and seven case that's where their mission to protect the interests of of william l conflicts occurred throughout that proceeding thereafter they would have the job of tracking the notices of doing the annual disclosures of updating the fund disclosures this was an ongoing compliance job counsel suggests that they're saying they didn't do that absolutely they failed to ensure compliance they failed to remedy of dismissal with prejudice of a two six one five this is not a simple case this is a case that the parties acknowledge there is a large elephant in the living room of this hidden file that mr goh which is denied access to this file i am eager and happy to stand on one leg bryan fed with the advocate on behalf of my client this is about fairness and justice this is furtherance of the interests of justice this mean deserves his day in court we don't know no one disputes vishal particularities which again without the file was a difficult standard i firmly believe as we stand here today that in the light most favorable to the plaintiff this complaint is sufficient to move forward it should not have been with prejudice if the court in the lower court wanted additional particularity that's something that we could have gotten had we gotten the file the issue remains as the case law is clear and i'll end on this judge be wanker no say the facts exist not only to a set of facts it's good there's a case from broward county pending right now we know the facts are in the file the facts exist so the question here is fairness and is as little academy made clear if this case were to be affirmed it would be absurd unjust inconvenient result that did not he's a plaintiff the keys to the courthouse the factual issues the counsel went so far outside of the record to argue in front of th