host who is a chiropractor and a friend of mr diamond know mr diamond for years and had personal level noticed that he was not the same man he was confused he was gets worse as time goes on that's right and it was refused diagnosis diagnoses most of them took place before mr down one started his relationship correctly he's unaware of this around him sometimes sometimes he doesn't even recognize me his wife of many years he's not able to make business decisions mr moore who was on a caretaker he was not sold incompetent that he couldn't talk to people he couldn't do things but it was apparent to everyone who dealt with them that he wasn't quite right i mean i might think having a person can write on a cat mentally incompetent person can get on the we have backed up those allegations with affidavits of medical professionals and mr moore who said when he's on the phone with the broker the porter was speaking to mr john as if you work child he was explaining th trying to play at that point in time was he competent was he able to make the transfer or was he aware what he was doing that the complaint just raise i think it's very clear is that when these transactions were being made when they know all of this gentleman mr pearl knew of the mental incapacity what evidence do you have that he knew of this mental commands the way got on the phone and said my husband's suffered a stroke help because you treat somebody as a track is it really evidence stand here of knowledge of the mentally ill yes see that's the problem but that you can't you know you have this mountain to go through and the second thing is i think you claim you know like i said is that you know once we get to discovery i mean we certainly can sense that we've got to consultants imus case whether it was necessary to talk or to get expensive this at this stage treat him like he was crazy they still say we're just following orders like and those orders are very lucrative to don made him a hundred grand with where as we've all lived and it's impossible to make any money for the man says that there's always a fight to see arry duty between a commodity broker and discuss the scope of the activity is it it depends on the relationship but even in the case we you are presenting it you see and fortunately it doesn't work that way there is no rule that says the discovery occurs at a particular judge that's that not my dick that's not the practice that i've experienced thought process through well i understand you know because ninety percent of the time it goes a certain way but that doesn't mean that people can't he be a pro you know  i understand what you're saying and i understand how frustrating it is that the tape recordings are are not dispositive of the issue in front of this court today you know what what what what is despised is that we have set out a way well played a complain setting forth that mr downer was incompetent unable to understand he was doing that the brokers had noticed and in fact treated mr don one as an incompetent that therefore they breached their duty and just to go for the jury when they took control of the count how can a magistrate incompetent person have control of a trading account it doesn't make any sense right what every question be held to a contract because of his much when confidence then he's unable to be held he could no longer control or have control of the trading in the account therefore  discernible investment objective but only raise them one hundred thousand dollars in commissions for a couple months work that is the breach of the duty date they were year old boy called off and said i want to make these deep these trades they read it they would be breaking their duty to make these trades if it was a great respect and to the detriment of the client that's what we're saying here it becomes an issue what proof do you have this back in the only proof that you have of this bank is that you've told me is that the broker talked to him like he was a child and a white guy on the phone and said  husband's had a stroke that that stroll has made him nicely incompetent that he's that he does not want to always doing sometimes he doesn't know why yeah those are specific factual allegations that would put the  their duty here mr justice so for all these reasons i think we've laid it out i'm not saying this is going to be an easy case when we get to trial it's go and maybe we'll be back here and i'll be on your side of the table defending the ruling in our favor thank you behalf of her husband would it wait for her red notice that he should get investigate no you got well number one i don't believe the simple phone call by someone claiming to be mr dunn with his wife and saying he's incompetent is necessarily imposing a land here the testimony that you're referring to comes from mr moore mr moore by his own affidavit testimony moved out of the down one household on the fourth of february two thousand at that time the account had not even been opened at that time no trades had would could be made because the account wasn't open the account wasn't open till march seventh of two thousand and six the first trading didn't occur until may of two thousand and six that more af if you read through those paragraphs i had appendix thirty four paragraphs thirty four thirty eight basically say he talked to him like a child he turned to do this right away told him this that the other never said mr donlin acted on that advice mr donnelly took that direction because in fact he couldn't there was no accountable and no trading occurred until may of two thousand and six from may two thousand and six through august of two thousand and six when the trading occurred mr moore was well run by that he had been gone from that household for months and was no longer serving as mr diamond's caretaker the basic essence of this case here is simply bad a broker of a non discretionary they did exactly what they were supposed to do for a customer who represented himself as having fifty million dollars worth of assets making two million dollars a year being involved in trading for a number of years and actually having traded the same strategy and the same type of the same types of trades with a nother brokerage house months before he came to linger what about the argument that the trades actually  it's not up to the lynn group to determine whether their customer who has a non discretionary account is trading in a way that they might trade if it was a discretionary account or trading in any other way that's not a value judgment that they make it when they're in a situation such as this with a non discretionary account if they would refuse to trade as they're directed they would be liable to their own principal for failing to start their duty as a not broker of a not a discretionary account take direction will the real key here is what was the in group charge with doing and did they do it and in fact they did you're telling us that they have no duty to investigate and you are we believe that in this situation they have no duty to investigate but even if they had a duty they did investigate mr pearl's affidavit totally uncontroverted on these points said bed he had been talk and to mr donlin for a number of for a period of time before the account was opened he talked to him regularly about the of the account and the trait mr donnegan made all of his trades by telephone so in each instance mr hall was affidavit says just that that he was not he understood things he knew about the markets he wanted to do a variety of things and so in effect mr pearl was conducting an ongoing investigation even before he arguably was was he said the only conversation had with someone wanting to be mrs don was when this is don when i was on the phone with mr don and they were talking about the pope the potential for getting a big payday if there was a storm in there in the gulf another katrina the only previous conversations that mr pearl testified to having with someone identified as mrs diamond and that itself is a question of fact that hasn't been established in any way or or alleged other than it concludes refashion but his only conversation would be when he called mr do nine that's correct them what does your primitive matter if from the matter were the account documents that number one establish that this was a non discretionary account it also the account documents that also identified mr donlin as a fifty million dollar net with two million dollars year of income and with failed along in and varied experience in the trading of fog commodities and other securities so bad was something that was not part of the complaint interestingly enough sherry duty and consumer fraud directed to a commodities account with no attachment no inclusion of the contract and the other documents that were used to open that account so that was our aid that was a filed years ago there's the excuse that mr molder and gives is not viable under the circumstances because there was plenty of opportunity for discovery in fact there is no discovery that could solve this problem there is no discovery that would turn this account from a non discretionary account to a discretionary account based on the allegations there are no allegations that say that the lin group acted on its own account acted on its own be have acted with discretion to place any consumer fraud and the consumer fraud effect your honor depends upon some type of fraudulent activity again this is an attempt to leverage a claim of incompetence with no fine even counts as that which would occasion and actually no solid evidence of it into a consumer fraud scheme when there wasn't as judge pressed improperly found there was no misrepresentation many facts or any information to mr dunne in fact there was no representation whatsoever they were simply taking orders they were mr diamond as not being able to comprehend the risks and responsibilities as set forth in the document doesn't say he's incompetent doesn't say anywhere in his affidavit that he's suffering from dementia so interestingly enough a essential here because in order to satisfy the requirements rule one nine one you'll see that there was a statement in dr dodge records saying that when he examined mr don he's a fine guy he's in good shape he's got a concern about coumadin being rat of things that were brought  a bell hey this is not right something's wrong with this guy why would you spend a million dollars on something that's never going to happen talking about mr moore if you look at his affidavit there's more of he did move out in february but he took back you would get upset with him he witnessed three or four other calls with mr pearl with mr diamond one on the speakerphone it wasn't just one conversation it was a series of conversations during the same time when he's in the same time when he's making these transfers to the bank going back and look and take a careful look at the affidavits of mr moore they're highly detailed about the timing of when all this was going on it's at exact time he's transferring the money that they're detriment of the client where they make one hundred thousand dollars for a few phone calls over a couple of months while mr dowling loses over a million dollars don't give commodity brokers a license to steal