the work the next is questioning his appeal across all subsidy issues is what specific conduct binding forms the basis of plaintiff's claims against me the answer is i w because i made the decision to represent nine individuals against the plaintiffs the most important point that i want to emphasize today is that every specific act by me attributed to me in the plaintiff's complaint involves my representation of a client as a lawyer pursuing relief in litigation or even news that there is a conspiracy for an advance of any specific potential clients that are the matter to work out in the way that  and you would then get clients if that is the allegation to how does any slant applied of that what case law do you say there's something that informed that foreign branch of an actual judicial proceeding which is the only part of the statute actually you're relying on that that qualifies well your honor with respect to the scope of the two c p a the question is what's what is the conduct that forms conduct actually constitutes conspiracy or a concious participation a conspiracy goes to the merits of the action goes to step two of the analysis and doesn't factor in sept one of the analysis there have been many cases where there was a legit conspiracy and judicial proceeding the case law as i see it including the cases a u i on that you say support you all seem to be dealing with either an actual proceeding under way a plaintiff and defendant papers filed in a court of maybe digits found in a court or right on the cusp of that the allegation here is that there was the prospect and should these plaintiffs come forward you would have this role after a man who did his part though if that's the allegation what case conspiracy involving numerous defendants and one of the set of defendants was an attorney who was representing a labor union and the plaintiff in that case was an electrician who claimed that his professional reputation had been tarnished and various actions had been taken against him and the court said with respect to the attorney who represented the local labor union the only acts here that evidence his participation in a conspiracy were that he attended a criminal trial of the plaintiff and that he represented the  action that is based on related to or in response to an exercise of a protected right and this court is bound to interpret this statute as it believes the texas supreme court and the texas supreme court recently in february two thousand and seventeen determined that courts have to apply the literal language of this actually even though this the terms in the statute are unqualified they're broad and they have a propensity to make the statute go much broader than the core considerations of constitutional activity that the courts would normally consider protected under jurisprudence would not have to apply to it to an existing piece of litigation our petition o complaint not just a threat are an attempt to extort some party by threatening to sue them oh no you are doesn't the static the statute actually specifically defines the rights of petition and there are about five subsections of activities that are considered rights of addition that the very first one is any statement that pertains to a judicial proceeding on the relied on current that is correct or that's that that subsection eight pertains to a litigation beyond that well it was cheating is the only part of this statute that you cited in the district court gave a case he said this is a judicial proceeding and i don't see that you lied and can and so we'd have to do with what you could expand your argument in the district courts i want to try to make sure when you should judge clementon judgment that you are saying what we need to resolve here is whether this was a judicial proceeding that is the focus of the case the question is whether there is something unification but i mean that relates that pertains to a judicial proceeding that forms the basis of their claims against me to get to be a yes even if you're not quite sure what my question but the only thing we're looking at is judicial procedure correct held that the communication doesn't have to be in the context of a filed judicial proceeding that it can occur whenever a judicial proceeding is imminent or considered to be imminent and here are the specific acts pled or that i accepted representation of a client  file a judicial proceeding and that i communicated the facts of my representation of a client through a precinct notice letter that was acquired by texas dutchy as a precondition of filing the claim and is that the agreement predates all that new greenman is that you will stand by and be ready to do this when the occasion arises i'm not saying it's truthful on your standing here and no doubt would deny most of that but that's not identified any point in time that it and finally even if let me ask you about that what would you have the plaintiff do if you don't have your cell phone records of the wasn't privy to a conversation that may or may not have happened but that isn't a plausible allegation how could he do otherwise and say here is the effect of that agreement respectfully your honor the plaintiff could not plead outside the statute and that's the point this statute exists to target this since this type of cas regardless of how the pleading happens now there's an important element is that it's not that they can't proceed with these types of lawsuits they just have to satisfy their burden under step two of the  that difficult of steam they can rely on pleadings but they have to show me by element what the information is that supports these claims and they did not do that they did not attempt to satisfy their step seabird in this case and what they've appeals directly held that that's not sufficient to satisfy the step to bird that you have to go element by element and show what the specific information was and in that case that plaintiff had attached two hundred pages of of exhibit complaint and the court actually observed that they might have been able to satisfy their burden with what they had had they attempted to do it texas attorney immunity applies because every act attributed to me every specific act is within the scope of my representation of a client the initial acceptance of a client send increase of notice and fil those are all of the specific acts that are attributed to me which reflect the conspiracy and as this court determined in the choice case which was written by judge clement the inquiry is only whether the specific acts relate to the office of the attorney within the scope of the attorney's representation and here that's easily satisfied on the face of the complaint and also the involved a conspiracy allegation there there was an allegation that the attorney conspired to participate in advance ponzi scheme and a fraudulent scheme but the court looked at what was done to advance the and what evidence the conspiracy and determined that the types of filings and representations that were made were all within the scope of representing the client and could not form the basis of a claim under texas law now the two arguments that activity that cases it i would submit is an even stronger indication of where you might be able to link an attorney despite the fact that the tourney's conduct was within the station of being a lawyer to some type of criminal activity are with respect to the rico issue the parties agree that this court's jurisdiction turns on whether the rico issue is inextricably intertwined with the t c p issue and as a practical matter what this means or one element of what this can mean is this court has the ability has the discretion to determine that it's appropriate to review the case if there are overlapping issues of fact and law and respectfully out submit to this court that of a client and the primary work for this court and with regarding both issues is parsing the plaintiff's allegations to see that the only way the plaintiff supports their allegations are details let's pacific involvement i had is based on an allegation of my representing a client or deciding to represent a client in the legal issues while they do have some doctrinal differences the focus of the issues before the court are not on those differences but on the application of the same principle event the need for the case to go back to child back to discovery and potentially back again to this court for another appeal on the rico issue again the key issue is that every specific act attributed to me involves my representation of the client and with respect to this this court is a term in the snow ingredients case that litigation activity cannot be the predicate for a civil rico claim this court survey an overwhelming consensus of case law supporting this and found that the only exception to this were cases in which there was bribery witness tampering obstruction of justice some criminal element in the lawsuit itself or advancing a lawsuit itself here there's no allegation of that there's no there's none of those  been pled here it's the fact that the lawsuits were going forward or the specter of lawsuits going forward as they call it as what they claim is lawful and under this course president that cannot form the basis of a rico claim please the court i'm howard clatskanie i'm appearing here today for the apple e's diamond consortium and david blanc initially my clients acknowledge that an attorney's representation of his client is generally speaking a protected activity however the actions of mr him of all his firm or specifically the claims that have been asserted against mr him involved in his firm do not involve a what's your best case that that under texas law it is correct to go forward i know judges aren't made the distinction but i'm not sure about the case law of how far this statute goes and i do think mr  that texas may have had set up for the should be dealt with is to show a prime of a she case in go to second step on the verge of it but not there yet just looking at the first so what's your best case that even though judicial proceedings are at the core of the harm it is proper to look to step back from that industry agreement the agreement to bring such litigation your honor i appreciate that question and i'm going to answer it i think one way to answer it is to look at the big picture there's an irony here this well you're saying of course it really was about what case law we have here but if you're telling me well he's got a look at the purpose of the statue where there and there is no case well that's fine no sir there is some case law i think the serafin case which i plan to address in a few moments is much more applicable in this case than walker versus the bowmen i a city i would also refer this court to the candy hanger case that was recently decided in texas the hammer of old partings are essentially suggesting that paternity attorney immunity is absolute no matter what and i think the case law clearly says otherwise the point that i was going to make though the irony here your honor is that this scheme executed to perfection would actually result in no litigation being filed again if the money was paid by the jewelers who were being extorted there would be nothing for mr hammer are being sued for knowingly conspiring with others in an illegal scheme that was designed and intended to extort money from targeted u s when we talk about the life complaint filed by my client it sets forth the detailed specific facts that would allow a reasonable fact finder to conclude that both am of old and his firm knowingly participated in this illegal scheme well before any lawsuits were filed well before any litigation was imminent these allegations far exceed the scope of any protected legal representation by mr hammer of old of his clients who mr hammer of old acquired through the legal scheme know in the order denying the amended motion to dismiss the court correctly noted that it is this scheme not the judicial proceedings that form the basis of the conspiracy claim the trial court found that my client pled sufficient facts to state a plausible claim for civil conspiracy and noted on page nine of its order that it was hammered holds a willingness and availability to prosecute claims that was part of the overall scheme no when we talk about the live complaint my clients have specifically alleged that hammer of old his firm and his coconspirators all engaged in illegal acts this complaint details the scheme how all of the parties put it together and effectively carried it out and this is detailed throughout the pleading mr hammer folds role his knowing participation in the scheme how and why he was a necessary party to the conspiracy and how these defendants collectively functioned together as a unit with a common purpose i e extorting money from jewelers is detail throughout this complaint and what i would emphasize is that these allegations unlike the allegations made by plaintiffs in some of the case law cited by mr hammer of old are not conclusive they are incredibly detailed we talked at length about the litany of false misleading defamatory publications posted on the internet in social media on the flyers that were distributed not only in dallas but in cities throughout the country that amount to extortion and kosta to mail fraud wire fraud and violations of the travel act and violations of tennessee state law probably not to my knowledge or on one of your case against mister your honor there was a compromise a confidential settlement agreement entered into that resulted in the entry of and agree permanent injunction money as i understand things i'm not trying to be cute the answer is yes and no technically no into the terms of the agreement however my recollection of things and i was one of a handful of lawyers involved  one of the law firms who was representing my client agreed to purchase certain internet sites that mr maneuver had allegedly posted like a facebook yes your honor and that was the way it was ultimately resolved to the best of my understanding no these criminal acts were done with specific intent to generate fear so that my clients would agree to pay mr large sums of money for legal work that would not have been needed but for the scheme now in two thousand and fifteen the supreme court of texas decided the in re lipski case and held that the t c p is not designed to dismiss i believe all of that is set out in the in the complaint no the conspiracy claim addresses the actions of mr hammer vold in his firm that they agreed to engage him outside of any pending or imminent judicial proceedings and again carried to perfection would have ensured millett a geisha this does not equate to the right to petition and a number of courts as mr hammer of old acknowledged including the my client's conspiracy claim arises from the exercise of his right to petition if hammer vold and his firm meet this burden the court must then determine if my clients can point to a clear and specific evidence showing  facia case for each essential element the hammer of all defendants respectfully did not meet their initial burden under step one and cannot given the detailed factual allegations asserted against them accordingly and respectfully we submit that this court's inquiry properly ends after looking at stage one however if this panel finds that a step to analysis is required or appropriate in any way we believe that the record includes clear and specific evidence that supports each essential element isn't it a fair statement in our review standard that gardasil what's in the record it must be already been made in the district court to address the issues that are given need to be renewed up here and otherwise you have waiver well your honor i understand that that's been the allegation i respectfully disagree with the argument made by the opposing side they have alleged the way for what we is supported by our evidence your honor my recollection is that that was referenced in the briefing materials filed with the trial court you know i've looked at the brief materials that may have been referenced but i did not see any argument about here's the evidence that supports here's how the prime facie case would be shown but you and your honor i'm not you may you may be technically correct not what i'm recalling is that the live pleading the consolidated amended complaint not only was it incredibly detailed but it referenced and referred to lengthy exhibits over six hundred pages of documents that were referenced in the response of pleadings filed with the trial court the evidence was there but i respectfully submit that the trial court judgments  made his determination based upon mr him of all his failure to satisfy prong one and again i really think the inquiry stops there but if the court doesn't want to do that and we want to look to the evidence it is there the relationship between the defendants how they put the scheme together how it was carried out both in dallas and throughout the country and details about the jeweller's who were subjected to and damaged by the scheme were all provided and i would also note that these exhibits i e this evidence was not objected to by mr hammer valter his firm moreover it wasn't even necessary according to the cuba versus pilot case because the evidentiary standard in this context is more like a pleading requirement than a traditional evidentiary summary judgment standard as i understand cuba when a party like my client is responding to a motion to dismiss like this one my clients are not required to provide evidence in a traditional sense if their pleadings are sufficiently clear and i'm referring the court to the cuba versus piling case which cites to sara theme versus blunt which i'm going to be discussing in more detail in a few minutes respectfully we believe that my client's life complaint fully satisfied this standard no getting back to what judge southwick asked me earlier a number of courts including the supreme court of texas  candy versus bird have held that attorney immunity does not extend to fraudulent conduct done outside the scope of the lawyers legal representation of his clients moreover a number of courts have held that the manics case cited by ham of old and other cases cited by hammer vote should not be read to immunize attorneys who are protests appends in fraudulent schemes and we've cited all of that case law in our briefing mr hammer vold in briefing argues that walker versus beaumont is directly on point respectfully we believe that he is mistaken not to the extent that walker stands for the proposition that an attorney's representation of his client falls within the right to petition we would agree but again mr hammer vold in his firm are not being sued for engaging in any protected activity they are being sued for agreeing to engage in an illegal s with others outside of the litigation process given this we submit the serafin vs a blunt case is much more instructive than the walker case the claims in serafin which i'm not going to spend much time talking about can really be broken down into two parts there were some claims that the court said related to filings made by attorney sarah fim and those claims were precluded under the act but the court went under that there were other claims that addressed threats made by sarah theme outside of the context of a lawsuit and those were not subject to the and that is much more similar to what we're dealing with here in this case mr hammer vald and the other defendants enabled threats to be made to extort bogus engagement agreements with the goal of avoiding litigation not prosecuting it not getting to the waiver issue argues we've waived the right to argue about going to i respectfully disagree for two reasons point one we believe the evidence was presented to the trial court point two as i read the briefing filed by mr hammer vote in his firm their argument was based soley upon the affirmative defense of absolute privilege not not lack of evidence which does not apply in this case because again hammer folding his firm are not sued for engaging in protected activity lawyers are not free to participate in illegal extortion schemes with immunity simply because they are members of a state bar yet this is exactly what hammer vold in his firm are arguing before this panel  card should not be a judge a get out of jail free card now that the privilege asserted by mr hammer of old is an affirmative defense which is not properly addressed by way of a dismissal motion  unless the complaint filed by my clients clearly shows on its face that the privilege applies and i refer the court to the intelligent or versus soriano case that we've cited for that proposition my client's life complaint does not show that the privilege applies in fact it demonstrates just the opposite no turning to the rico claim we respectfully submit that this court does not have jurisdiction to address it at this time or alternatively that this court should not choose to exercise jurisdiction over the claim at that time at this time and the reason for that is simple no rare and unique circumstances exist here affirming the trial court's ruling my client's life complaint which is to be construed in favor of my clients where all well pled facts are to be treated as true so demonstrates that the claim should not be dismissed dismissal is only appropriate if the complaint fails to plead enough to x to state a claim that is plausible on its face meaning it not a probability requirement but asks for the possibility that the defendants acted on lawfully and i refer the court to the bell atlantic versus tome lee case decided by the united states supreme court for that proposition i submit that when this panel reviews my client's l complaint it will be clear to the court the my clients have alleged far more than a possibility that the defendants have acted unlawfully are saying about the  for multiple reasons first of all there were no rico claims or conspiracy claims asserted as i recall second of all the party in that case was able to meet the step one or prong one analysis under cuba versus case did not according to the court present any evidence that would allow it to prevail as i recall there was a contract some type of agreement between the parties that the court found was clear and unambiguous and the the other party came to court and presented affidavit testimony and possibly some other documents attempting to essentially rewrite or change the terms of the unambiguous agreement the court said no the p won't permit that type of evidence which essentially equated to no evidence we don't have those facts here at all in terms of the other case the m v s case that was recently cited by mr  the court in that case specifically stated that it was choosing to focus only on one t t c p a right and that was the right of free speech that right is not implicated in our case additionally the court found that the evidence that was submitted by the court was conclusory and again as i touched on at the beginning of my presentation we believe that our allegations are not conclusively in any respect they are incredibly detail into existence and before there was much president on this issue and in that case there's a majority decision which is very very brief and concise and then there's an extended supporting concurring opinion and that has become a significant point of discussion later cases and in the concurring opinion the justice wrote separately to explain this concept of a mixed claim because the facts in that case involved harassment between two neighbors that ultimately was rising from tension about a property line dispute and there were legal elements to the harassment and there were extra legal omens for the harassment including threats to third parties that were servicing the propert and the concurring opinion reflected on the broad language of the statute and said that we need to have some type of judicial limit on the statute based on what we know about constitutional jurisprudence and based on what the legislature might want to be capturing  and in fact the court specifically said that if you were just to look at the ordinary meaning of relates to it would quote denote some sort of connection reference or relationship while in response to it denotes some sort of answer or or act in return is also important because it talks about the disjunctive and non redundant is based on related to or is in response to and says that when you look at the plain language of these terms you have to can't limit them by the nature directness or the strength of connections on page forty of the decision and it concludes it is hard to conceive of a legal action that is not based on related to or in response to at least one of the two c p a s three defined categories of protected activity so long relationship between husband and wife and there was an element of it that use litigation and used abusive use of process in order to intimidate third parties that got in their way and the court said well based on this link which relates to th also what if there never had been clients that this conspiracy could be proven alleged conspiracy hypothetically was proven but in fact the effort by menuhin was successful and one point in time i had announced my representation of the clients and i wasn't offended i wasn't at it and so i'm asking you a hypothetical question would that be a proper litigation against you against an attorney one of problems of the party being here is it as and as the actual attorney is it does become more personal but let me just say an attorney you agreed in the way that the plaintiff says no litigation was ever brought because the first player in the conspiracy was always conspiracy unable to be sued because there was a judicial proceeding under this under the statute well your honor i understand there to be two elements of the question i'll try to answer it the best i can first is without any of the that someone else is doing that's not sufficient to stand a claim for a conspiracy just simply agreeing on something without doing anything or without advancing the conspiracy in any way just simply abstractly agreeing to somebody else doing something is not action as an attorney if there was just a separate conspiracy and say for example that they had alleged instead of me except the representation reflecting my conspiracy that i had helped the other defendant with the advertising campaign or i had also called that the plaintiff and urged him to retain the other the other defendant those types of actions would likely