i believe that for two reasons one i believe that our side is fairly thoroughly briefed and also i think i will need more time to address issues that they might raise so in opening  i recognize that this case is may not understand it no one likes this case i don't necessarily like it myself i understand that it is a hard case to address and may be disfavored we have alleged a rico conspiracy claim against a law firm a lawyer and while these cases may be disfavored we believe that we've pled facts and cited law that support this case going forward at least so that we can prosecute it to to prove that we can demonstrate that what we've alleged in our complaint is true just because someone carr that that addresses these very issues for example our side versus about twenty thirteen u s district lexis one two two four nine six this is a case where an attorney motion to dismiss a rico action was denied under circumstances where he provided false assurances to sellers in order to convince the sellers to close the transaction that's kind of similar to what's going on in this case or the i mean i really was certainly i was kidding you that you know it is a tough case you brought in and that's good that's good it gives us more interest but but the feature that i am interested in pretty closely in your opening statement said he throughout your brief and your i'm right your complaint it's druck me as you lack the particular already required by rule nine there generalities and with counsel the the firm's proud your honor it's our position that this was not just a case where the attorney was giving legal advice or representing a bad actor this is a case where it was that wouldn't be fraud that would not be fraud thank you what we have is an attorney who was invested in the rue arc enterprise and facilitated its operations brandon booth the attorney who works for howard and howard  and this is detailed in the complaint at paragraphs forty five through fifty seven his activity to further the remark enterprise is is not just by giving advice he created over eighteen entities in various states all home healthcare and cities and all owned by the same individuals why does one need so many home health care entities if why not well i guess i have to you have to understand that that kind of begs the question i don't see the obviousness of that ok but you have to understand the nature of what the rock enterprise how it operated through the individuals and the back office managers not parties to this case but their the back office managers are related to the work individual is by family as well as by a long working relationship they are vicki welty and tina griffith they are responsible that's very two because isn't one the spouse no i believe it's  a sister mr ok the lady but i sed there are the back office managers are managing what they do the back office platform for these home health care entities there's a lot of rules and regulations that are associated with this industry reporting the financial books they had all the control over the financial operations of these businesses and other businesses that's what they were designed to do so for example i'm getting i'm sorry i know your time is limited but the back office people were the ones who were doing the manipulation of the a b i and ities that what they were manipulating us so really briefly to go to your point and then i'll get back to other things that mr boo did the default that they rely upon as oh a b i is in default how could this happen they they're in the wrong they can't sustain their claims because they're in default well here's an instance where the back office platform managers created the weather and now they're complaining that it's raining they they were in control of the financial reporting they report to well in this instance they were they were the financial reporting was regarding the i meant who is their boss oh well it's it depends reported to the individuals they reported to kevin rudd who is the architect of this entire enterprise but who hired kevin kevin rourke in charge because he's a b i gave it to him right let him run it next yes i mean he was managing this business and he or them or them correct but he wasn't managing it for their benefit he was managing it for a self serving purpose to serve this enterprise so the reason that they're in default is because taking instructions from mr moore kevin rudd they failed purposefully to provide this financial reporting so it's part and parcel of the activities of this enterprise that they landed in default with first marriage so they cannot use that as an excuse because it's part of the harm that was you know inflicted upon my client you know as part of this enterprise but don't granted to them one key issues seem to me to be proximate cause under the supreme court's three major cases or so could you just lay out very clearly how you think the proximate cause requirement is satisfied here holmes answer and have a group do not require they what they do require what is needed to plead a rico violation is that the injury in business or property by reason of a violation hundred sixty two it needs to be a direct harm that is caused by the same conduct that is the fraud and that's what we have here we have we've alleged that you know  the conduct acts giving rise to harm is the same conduct that's giving rise to the fraud which is the first marriage transaction they allowed for us to be in default they violated a court order which is state court held them in the individuals in contempt for violating that order they misrepresented that first marriage could enter into this can't this contract and they admit that that we were the target of their their scheme because howard and howard admitted in open court that they that the rourke individuals wanted to take over the subsidiary entities so that they could end the litigation they wanted to cause harm through this transaction through this financial institution fraud and so we're alleging that not only can we rely upon this predicate act of financial institution fraud as part of our rico conspiracy but that we can also but that it is also the same conduct the fraudulent conduct that gives direct rise to our harm so that's all that holmes an answer and heavy group require now anson heavy group are distinguishable for the facts in this case because they found a very good your honour's if you want to continue you may or you can use your time in rebuttal as you can i can use my time i do believe very in some that are briefs stand for themselves and any questions i was here to answer questions honor there was your honors there was two bases for this appeal one being the dismissal of these new plaintiffs that were added in the first minute complaint we've addressed that in our brief and the points i'd like to make regarding these new defendants is  sold by first marriage after the foreclosure sale there is no claim that a b i maintained any ownership interest in these and your honor the only claim that  somehow a b i still maintains an interest in these companies is this conjecture that somehow this sale was was cloaked in some sort of bad faith or some sort of commercially unreasonable terms would that actually work how would that work the juror defendants my clients the juror defendants would take those assets subject to the interests of a b i but they have not alleged but for this first merit sale that they claim was somehow not commercially reasonable or done in bad faith there is no there is no so there is no bad faith the juror defendants have alleged a fair number of things that say it's bad faith that was in violation of  the stop stop order from judge brian there was a time you can you know which two i am i'm aware of that there's a status quo order in place but the important thing to know about is that neither first marriage nor any of my clients were part of that litigation and were subject to that order so first marriage free and clear of that water so the essence to my clients for you clear that were there was a finding of civil contempt by kevin berar jamen remark and jason lang but those aren't my clients those aren't the juror defendants so while the sale of your position that that contempt would have been the only remedy there for that for that problem candidly your honor i wasn't involved in that lower case litigation so i don't know if there was other options available but the point the point that i'm trying to make is that my client was not in violation of a court order none of my client work goes to that so that bus there's no bad pay so thus there's no bad faith to take free and clear and then my clients take free and clear and then there was an affidavit by the one of the members of my clients that said they did this i'm sorry motion to dismiss in the district court correct by the defendant it was attached and affidavit attached to the motion to dismiss that's correct and it normally that's not considered in this was a twelve b one challenge the matter whether a b i and it is or a plaintiff here i think it's inappropriate so i don't think that a b i has any standing to bring those but more of what i do does anybody care if a b i is the proper plane if you're an a b i remains why does anybody care if if inappropriate claims are brought your honor but you have your answer could be that there are different damages for a b i entities than for a b i mean so that would be a reason why you would care i guess the intention with trying to get these parties dismissed is to pare down what the real dispute is i don't believe that these a b i entities these new plaintiffs added in the first amended complaint are part of this dispute between the parties and that's why we filed the motion seeking to have them dismissed you say they're not a part and do you give us a rationale for that because after the first marriage foreclosure and the subs can subsequently sale to my clients maybe i lost all rights and ownership all the assets of those entities i do think it's important to note that this entire case began back in two thousand and thirteen when a b i filed suit and seventeen and now is set for trial nov sixth twenty seventeen the importance of that is that one of the defendants in that case is k j j holdings which is one of the new plaintiffs in this case the exact same attorneys really we have no we have no way to take notice of any of that we sure don't need one more case fair enough here on the the second point i would like to make is with regard to the rico claims against my clients throughout the complaint nowhere do the does a b i allege any actions that would constitute mail or wire fraud on behalf of my clients whatever seventy page complain sufficient particularities paragraph to thirty eight of the first amended complaint goes on for about four pages i think there sub her graphs through h or i but those graphs all talk about the action of the rural individuals which entities right i think that the individuals at least two of them are members of the jira defendants the back office managers are i believe employees of the defendants but the actions of those individuals are separate and apart from the juror defendants perhaps they should have brought their claims against the remark individuals and against jamen i'm sorry jason lang or the back office managers you just say that the back office managers are employees and i think they're employees of if i did say that i was misspoken my understanding is that they're employees of these new plaintiffs i don't believe that their employees are three s h h c or redemption alleges that the back office employees are employees currently i think my recollection of the complaint is that it defines well to be in the other individual that my sister council mentioned as the back of his managers i believe that those two are the individuals defined but the question is are does the complaint say that they're affiliated with any of your client i don't believe it does i'm sorry and your red light is on i'm afraid so thank you good morning my name is tom cranmer and i represent the defendant law firm in this case is the panel knows this is a bit of an unwieldy case but i believe with regard to the court's decision as to my client a central issue that the court has to decide is a rather focused one and that is whether or not a b i has properly stated a rico claim against my client and respectfully i submit that they have not their claim if you look at it closely really boils down to two predicate acts of alleged fraud neither of which were perpetrated directly against instead a b i alleges that both acts were perpetrated against banks who aren't even a party to this litigation and moreover and i think importantly you sacks are unconnected to one another you say the court you know it's played in a way that we merge this conduct together and we have a sit in in the end a rico that's do you think this court room how do you suggest this court overlooked that i mean it's it's there that your claim was you know truly involved here or your your colleague your client was truly involved in all of this that he knew it was against the stay order to to get involved here and then he's the nine compete he's a very active party in pursuing new business that competes with the one he just sold but that hopefully answer a question your honor  i think two things one is and it's an issue that you raised earlier in connection with the opponent's argument and that is the rule nine requirement with regard to allegations of particularity as they relate to fraud and i think what we have here and what the district court recognizes just what you suggested this kind of a mushing together of ideas in fact a district court reference to as casual reference to the various predicate acts of mail fraud wire fraud in bank fraud and again i absence is they're alleging these back office managers are part of the rule arc enterprise right and they're the ones that caused the default because the bank to foreclose and that your client is involved in all this that seems to be their allegation or i agree with that but i have two responses to that first is something that i think judge moore you raise and that's the whole issue of proximate cause and whether or not these activities were really the proximate cause of the harm that was suffered by a b i and again i think if you look at page thirty eight thirty nine of our brief we have laid out what i consider to be kind of the chain of events in terms of that proximate cause in the very first says that but but by the way do those pages quarrel in any way with the lay out that comes from the plaintiff because if it does you know we don't know if i agreed but i don't think it to proceed ok and if you take a look at that i'd it shows kind of again the chain of events the first chain of events is the default by a b i and then the fact that the second link if you will is the fact that they failed to cure the default for more than a connection well yes but as opposed to just being a b i zone bad management is on top understood your honor but again i think you have to and i think the supreme court tells us if we take a look at for example the heavy group case that you have to look at the chain of offense and generally i think the court said in the any case that pages six and seven that the general tendency is to not to look beyond the first event well the first event in this case was that a fault of a b i and so i would respectfully submit again following up on judge morse questions that what the plaintiff really hasn't shown in can show respectfully is this proximate cause causal if it could be my fault it in terms of the actual hard copy it's actually page thirty in thirty one but at the very top of what i would call the electronic copy it's thirty eight and thirty nine so i may have misled you  saying we're only going to look at one event i suppose that it could but again at least the cases that i've looked at the united states supreme court cases again as i indicated to be the  l case suggests that if you start down that path in terms of the tracing if you will in your you're looking at various different levels that there's potentially a problem and i think the answer kay says the same thing that a link that is too remote purely contention or indirect is insufficient insufficient to properly state a rico claim and that's what i think we have here by looking at that chain of events that we're just looking at pictures thirty and thirty one so the proximate cause issue is actually if that if they're relying on the default to say there's no proximate cause because of a default then i think i've made my case regarding why that was part and parcel of the harm that was actually encour client home stands for the premise that you have to look at the entire violation and that if the harm arises out of the violation if not but for the entire violation the harm would have happened then maybe we haven't pled cited in our briefing the if not for their actions with putting us in default and engaging in the first marriage transaction then we would not have about the opportunity to cure have your your client could have could have fixed that could have found out that the back office people were undermining or cheating you or whatever you allege you allege all of that why wasn't why doesn't that interrupt the proximate cause we tried we did we will where's that play it's played in the complaint and we are fighting no we it's played in our complaint when we talk about the peachtree financing that we were able to obtain which the district court just dismissed as not true or are too speculative but but again you have to take our allegations is true and we had financing lined up we peachtree made an offer to first marriage which was rejected by first marriage so it was because they had decided to go with the remark individuals and and why did they decide that i have no idea who they are they're in business to make money right absolutely but but peach tree offered a seven figure offer and we have e mail court i mean it goes far beyond that we do have to we have proof that this was a reasonable and fair offer and should have been accepted we have a testimony from the senior vice president that he wouldn't have entered the deal had he known about the court order we have we have while this might be something that we could get into in discovery to determine exactly how that defendants primarily are in the case because they were the vehicle where all the assets were transferred they're also owned and operated by two of the rw are individual so you can't get around the fact jason lange and jamen remark so you can't get around the fact that these entities were controlled by the same rule or individuals that you know are the architects in the back in the truly really bad actors of this of this enterprise so the roark individuals are the subject of suit in a different proceeding right there they've been mean the litigation in this between these parties is intense and wide range the scope of it is is huge  you know in the state case we took over for counsel and there's another attorney who is running it now we are helping him we are on the pleadings but we're not primarily running that state case any whether the a b i and it remain as a plaintiff because there are assets at the time that they were sold they had two point seven million and receivables we believe that we should have control over that two point seven in receivables  do you need to have them as a plaintiff as opposed to bringing it on your own behalf i believe i am sorry for interrupting you i i believe it has something to do with the way the contracts lay out in this case and having them as part of the as plaintiffs just makes everything easier with proving in what way what makes it easier what's i'm look at what what possible  he i can't i just know that there's certain contracts that we haven't attached so it goes beyond the scope of the complaint but the reason that we wanted them in has to do with those contracts and i apologize that i don't have a better answer for you  two d as coconspirators so under case law that we've said in our brief we don't have to allege that they necessarily participated in a predicate act to hold them accountable under one nine hundred sixty two d recognizing that if we can't prove that there is a conspiracy  rico enterprise that you know it's not likely that we're going to be able to prove conspiracy to that rico enterprise well if you get past twelve the sex then you're going to ultimately facing summary judgment absolutely but at least we'll have some time to take some discovery and prosecute this case to the best of our ability so what is your theory with respect to the law firm howard and howard simply that this one lawyer at howard and howard was involved party or is it more broadly against the law firm it it's most definitely pointed at mr booth but we do have other attorneys that misrepresented facts to the court in the state case that you in large part played it against howard and howard as a whole worry here about that kind of thing you are pointing to something that you think is their motivation or their they were trying to deflect i mean do you figure that to be  and this is fraudulent right yes the wire fraud all these things trying to deflect did they what did they do with specificity you see the point they made misrepresentations to the state what are they they have to be date time words in my complaint they are in my car not i'm fraid they're not here but we will look again will look again there are details in my briefing and in my complaints and my time is up i do have a couple more things if the court needs it but i don't if you don't then i will say thank you for your time today i think a judge has questions but i don't see any questions are we appreciate your argument we appreciate your argument all attorneys in this case it's obviously a complicated case and we will take it under advisement thank you you thank