you've learned from the parties brief this is a rather complex case that a stand roughly eight years the controversy and evolves a or revolves around the matine project which was supposed to be a multibillion dollar solar power plant construction project based in arizona nevada and california as it turned out the project was nothing more than a fraudulent scheme a pelleas in this case or to a matinee c e o s mr kim who was the c e o of matinee and mr chung on the specific items of evidence that this record points that seem to support at least i mean maybe we can start with mr jim because your case seems like everyone agrees if your case doesn't stand against  company had secured financing from oregon which is term he said all of those things and i think it's not really disputed that all those things were false but the question is what is the evidence that he knew that they were false w eleven thing and i think you very question one thing that i would like to point out is that you know his state of mind of the time in the same city made our question for a jury that to be race a jury in addition is that there is one particular individual that we would appellants counsel before i was an unfortunately the attorney is incapacitated he cannot ever come and we don't know what his thinking behind that was i assume that he made the decision based on the fact that they already knew john they had sufficient evidence to prove that mr john was hopeful and you know there was there was sufficient evidence in the case against him and that also they intended to pursue this matter in trial and intend to put him o these are two high level c e o s of this company not offended by the point to the fact that these are claim that these are the kind of titles that they were given that they were meaningless idols that they didn't carry any weight however these were the c e o s of the company and they expect the jury to believe that they had no idea that they had no effort whatsoever to review banking statements they never investigated the company whatsoever they never looked into this allegation that there was six hundred million dollars in a bank account and i think all of that would lead a reasonable person to conclude that if they knew about it that they were involved in a because any three you know what investigate those claims as the c e o of the company that's what c e o s are responsible for making sure that they  know or carrying out the role of the chief executive have anything we just think it's enough to get to the jury that we can say that my goodness given given that mr cain was the c e o he he must have known and he any fool would have known and that's all we need to show to get some revenge and i just don't hear you saying anything beyond that fact and so i have a hard time believing i think it jury would have a hard time believing as well that if they just had their heads buried in the sand they had no idea what was going on behind the scenes but mr chairman this is what i was asking earlier mr kim pervy produce specific items of evidence that supported his lack of knowledge and it seems like you don't really dispute that not thinking of the can't remember the investment bank that you know he went to these meetings that he obviously relied upon the statements  mr young about the billionaire investor i understand that he himself loan money to this enterprise and lost it again all of those things are completely consistent with his version of the story and so he would have to produce something to counteract that that would create a you know the ability for a reasonable jury to find in your favor and i just seen an absence of anything on your side other than he had to know it was a brick he was the c f o and then i look on his side and i see a lot of evidence come away thinking anything other than he knew that what he was saying wasn't true and why else would he make these series of false false statement if he didn't know what was happening behind the scenes was was was this fraudulent even that was on and and the other thing you know the judge in the district court case also looked at all of the individual pieces of evidence and one thing that i would like to point out of this well as yet if you take each individual piece of evidence and you look at each piece of evidence individually it's not as strong but when you look at the whole thing in our picture of all of the things that happened over the course of a year after two years you can't come away with anything other than thinking that mr kim and mr chung knew what was going on they were involved in this have agreed to divide the twenty minutes for the police thirteen minutes for me and seven minutes for him however if i don't not use my full thirteen minutes i will yield the balance to mr ja i think the court has focused on mr thames the argument here and that is that mr kim met his moving party rule fifty six per the proof on a number of cause of elements of the plaintiff cause of action and pla very specific evidence as to the his knowledge regarding the issues of financing and the other issues that he supposedly made representations to plaintiffs represented his about  because there is no knowledge no evidence to establish his knowledge of any falsity you this court cannot find or this court can rule on on a statement on the state of there was a discussion of dividing up the consulting fees and also we discussing about him being a figurehead how is that not evidence that humans nolens well the problem with that your honour's if you look at the deposition testimony if you go further from just what the plaintiff cited in cross examination mr troy admitted that he could not see who was actually making those statements he was speaking because he knows what it was he was outside the door that's why he  but the thing is your honor that's not i'm misrepresenting even if mr tim heard it and there's no evidence to indicate that he heard it that's that doesn't mean that he accent assented to it or did anything with that information but it's usually at a conversation that's a loud enough to be heard outside the room you might think well inside the room would hear it and you might also think you wouldn't have a specific conversation unless everyone inside the room was already in agreement so i was having trouble understanding what your interpretation of this is that could be that wouldn't involve him hearing it and that's because he already knew about but your honor i think that deposition that mr troy heard this from behind a closed door while he was walking there he couldn't identify who was actually making it was actually speaking he couldn't identify where everybody was seated or he didn't identify where everybody was seated so it could be that mr tim was on one side of the room or table and the people who were speaking were closest to the the closed door they were speaking and they get here but it doesn't establish that anybody else could hear or or participate in that conversation including mr  tim there's also no evidence of a there's no clear and convincing evidence required under arizona law of an agreement to conspire to commit a lawful act or for an on lawful purpose against the the plaintiff though he was nominally the c e o to control or dominate matine mr kim has depth decoration and is very specific as to which powers he did not have for example he did not have access to the accounting books and records do not have access to the corporate him that he had three or four banks ready to to provide that letter of credit financing so it's kids perhaps a way to look at it as it's a thirty thousand dollars foot level as opposed to a day to day sort of level of activity was that answer your honor's question i guess so i just i don't i think you're calling it argument which is somewhat intuitive is how is it plausible that he theo for three years and really had no idea what was going on well the thing is that it's certainly very possible for someone to be nominally any sort of position and mr timms declaration and the other information that we provide provides very specific evidence of what he was not doing and not able to do so regardless of the fact that maybe in general a person would have a  question as to what a c e o should or shouldn't do or should or should not know in this particular case mr kim has provided a very specific evidence of what he did not know what he could not do and there is absolutely no evidence controvert that the evidence that that the appellant points to is things like gee it would be nice or i agree with something that doesn't establish any sort of level of power or any level of government if there  that your honor the that issue as far as i can see is not briefed in the us but the if we go back and look at the actual the actual evidence is before the court of what could and could not your honor i think that that speaks to credibility because it if in the st sentence that talks about another brilliant idea that paul came up with that's that incredibility to matine by putting mr panels  d you know it's the sort of thing that you would say here if she thought there was some reason to question her venture because it was fraudulent right well i disagree with you your honor done to possibly see something the various and it certainly i mean somebody has as your honor certainly done that it's i don't think that that is the only reading that that is and quite frankly i don't agree that that is the most likely reading from from that either i think the rest of it is quite is quite clear and in establishing that would mr kim meant by that was that the the company by putting the right people and makes it a more credible company and that's that's very important to a company that's starting out this is not in a after all is a starter so credibility is important and he's agreeing with the appointment of mr it doesn't say that he has control over this issue he doesn't say that he is the one putting mr penn as and it's merely agreeing with it and i think that's the problem with the other items that the plaintiff has pointed to there was another email where they pointed to with with regard to selection of of contractors who or i think they they refer to them as builders in the reply brief that's just saying simply expressing gee i would like to do something none of th indicates actual control a desire or a wish that's not going to that's not exercising some sort of dominance or control and that's probably a good place to stop it i will i will ok the morning or are sorry to switch rooms there was a sudden jackhammer in the street under jacobs for tang chong for the remainder of our time here i'd like if i could to discuss a few chung specific things and also address the questions that your honour's have raised to this point if i could but as far as chung specific matters there's one that really sticks out and it was really reinforced in a way by counsel's opening argument in fact both unit bases to excuse mr chung from the suit really underscored by our  friends argument st as far as the intro to corporate conspiracy doctrine everybody agrees that the law is that a company can't officers can't conspire separately with the company they have to be stepping out on their own essentially engaging in ultra vires conduct or doing something that is specifically directed toward themselves and in the very small amount of argument advanced toward the point that that immunity would not apply in their reply brief they basically point to their nd amended complaint and said we shifted the burden by alleging that they were doing selfish things that it doesn't really work they have a single email they point to which is excerpted in the text and it's an email like many of their attempts at proof that sort of swirl around hey isn't it intuitive bad stuff is going on and the e mail there is one from kim chong and if you look back the way they cited it which is interesting to me are page one hundred and forty two they're actually just citing their own brief and not the evidence and in their own brief they say that mr kim here informs mr chong of his thought that he mr kim thought that they could work one hundred megawatts in an arrangement there's nothing there that's an act by mr john there's no center response by mr john and i think we really need to hold this conspiracy to its proofs i mean the conspiracy isn't just some airy vested conspiracy it's a very specific conspiracy to induce a bunch of equally sophisticated corporate actors to fraudulently give money before they're supposed to and this e mail where kim says to chung hey there may be an opportunity for  there not only isn't an act of child of any sort it isn't fitting chung in any way there is no evidence chung took a step toward that but most of all it does not match up to the conspiracy there's nothing that's individually approach on that sent act toward profiting from getting a one million dollars prematurely from these sophistic kiddie contractors so really intricate conspiracy doctrine really should bar this they really have not made a demonstration and i think that we did and as far as alter ego goes alter ego is a very clean basis here to excuse chung in particular when one looks at their brief they have the table that our friend referred to and was arguing from and explaining facts that he thought would be of most interest to your honor's but all of his headings are about him none of them are about  and the headings even say things like john didn't control kim controlled no one is saying in this brief there's not even a shred of an argument toward alter ego status with chung you know who's you know on another continent who's never really dealing with the other people the contractors directly there's not really a whiff of alter ego here but i'd like to recur with a little bit of time here to judge miller to your question st which is you know you address that e mail and the e mails really interesting i thought i'd never been involved in a case where someone wanted to allege fraud where the alleged fraudster is writing to someone else that we will honor our covenant by any means that's a direct quote from the e mail and he's referring to you know we're going to get some steel or something at a cheaper price and you know it really would be worth more we're going to honor the contract so this is an e mail and it's a very detailed email about very specific plans about buying hundreds of thousands of tons of goods for use in a venture nothing about that remotely whiffs of fraud and there's this even though the steals worth more than that we're going to honor our contract by my fellow defendant as it turns out so i think that this e mail has an awful lot of waff that goes the other way and i don't think a reasonable jury could found giving our friend the benefit of what he said which is you have to consider all the evidence you know we get it he's right but taking this as far as you take it is as my colleague mr ellis said is all that's going on here is what goes on every day in america when a company is trying to establish its chops you know your mr kim thinks he's in a real companies trying to buy hundreds of thousands of tons of steel from greece or something like that and it's normal you know when you have a business you know you try to get like you know melvin ian meyers to represent you you try to get people who can speak for you establishing your credibility is not a fact that leans toward the area of suspicion but we understand in the aftermath of met neighbor lowing up in costing mr kim three hundred and three thousand dollars and injuring the contractors we understand that it's easy with two thousand and twenty hindsight to say well this corporate attempt at polishing your bona fides well you know a reasonable jury could i understand why that's his argument but that's what companies do every day and mr kim was injured by that as were as were the contractors so we think they're a very good chance specific reasons why in terms of intercourse or conspiracy doctrine and in terms of alter ego mr chung in particular should be excused from this unfortunate story that this lawsuit is i think at bottom this is a very very basic rule sixty eight and this is an instance where you have a classic zero evidence motion that you see and you know the rock was rolled up the hill undersell attacks and it's not coming back down and it's not coming back down for the reasons that mr knishes always explained and i would i would point out although it doesn't entirely  e friedland go to the point of your question when we look back at the testimony elicited about that meeting and i think again that testimony it's a small thing it's talking about someone being a figurehead one can question how much the person was doing tongue chung again not there which goes ahead and reinforces this alter ego point which is that to the extent our friend has complaints about how the officers of the business were conducting their affairs those complaints do not go to something that made an individual benefit for tom john and they do not go to something that was an intricate conspiracy where he stood so apart from the objectives of the company that he was doing something to remunerate himself in the object of the conspiracy and again conspiracy it's a proposition it has to have an object conspiracy to do what it's a conspiracy to get extra millions out early unfairly under the contract none of that gets within three standard deviations of my client bases we would argue that your honors ought to affirm thank you very much counsel thank you  want to pursue their claims so it never even looked at the intra corporate conspiracy doctrine or whether or not that was a good faith defense or either of the defense in this case one final point and again after this earlier but one final point to the district court and a rather lengthy order you each individual piece of evidence presented by the contractors and isolation i think when you of the evidence as a whole a jury could reasonably conclude that mr kim and mr chang participated in perpetuating the scrotum of the contractors and again we believe the testimony of mr apologia who was not hearing the last case