securities fraud claim and the rico claim which was tied to it in its armory points out it did so because it made one necessary determination and that was that david be a lot through this bail or to respond in writing to a letter consented to a major event under section eight point zero three of the class a stock restriction agreement and i know a lot of detail there but it's important because section  state claims for lack of subject matter jurisdiction not on the merits and in doing so the federal court went on to say that these very claims may end up in state court again and even with regard to say that david may be relieved of the consequences of his failure to responsible letter in particular said pages make much of what happened after the adult and since that certain court formalities were followed illinois law the stock restriction agreement and all my law and that's exactly what we ended up being later on in our circuit board planes but the federal court said those were not material to its determination because it didn't need to reach a decision on any of merits as to that issue it's not about what was argued rather it's about what was decided and it goes all the way back to the hoffman case cited by the police where it's not only if it be a decision but it's an outcome law that requires the price per share to be set by the board of directors was hollow it's certainly not outcome to spot to that issue it's not identical or the bylaws require that be done at a meeting with  it doesn't even mention a meeting doesn't work on a meeting it simply doesn't touch touch it let alone be identical to it and to put it in the way of example what is the one million four hundred thousand dollars does that get mr gra think this goes to also the dilution prevention mechanisms where article seven of the class a stock restriction agreement which again protects date and class b stock restriction agreement which protects karen both of them have provisions that there's going to be some shares issued elmis to notify everyone that they're going to issue the price per share and the number of shares along with other details saying provisions so and since they were not the right to prevent dilution dave or karen if they were fired the details would have been able to participate on the same terms of league race and be able lucia and the only other thing that i can think of that might be an issue with decide it is the statement that no defendant made a misstatement or a mission of material fact which comes o that was made our claims that were asserted at the circuit court as the federal court already kind of outlined or things about the places make much about what was done after the diet after the letter so the statement about him no omission happened is not the same omissions or the misstatements or the omission omission the failure to comply with these rules and the contract that we actually argue and in the end this is all bolstered by the federal court statement that it's not considering these facts because it didn't need to and saying that david maybe allowed to present his plan and maybe even the state  might help david out on that and i've said david several times go that leads us to the issue of fairness collateral stoppel is an equitable doctrine and it should not be applied when there will be unfairness and i think that's important and i separate david and karen for that reason karen for example is not mentioned in either federal court opinion except in passing at the outset of each and just mentioning that she is a part of her claims are not stop restriction agreement nowhere in either federal court opinion is there any mention of the class b stop restriction agreements so it is unfair to apply collateral stoppel to wipe out here in wales four hundred thousand dollars investment in this respond or if he did consent under eight dollars but failing to respond in the letter where his parents didn't do anything but david still deserves his chance to not just present as claims but to get a decision on those very significant investments until essentially wiped out when he didn't even know what up one million four hundred thousand dollars was going to or example maybe he was going to buy one share and it didn't matter that much of one share change unfair in the situation and with that i'd like to briefly throw the malpractise because it is somewhat different but it still comes down to the same thing is it identical nothing about  this litigation and the drastic results suggest that it was very important for grace for his firm to let david know that he should have got new counsel were say this is what's going to happen if you do not respond to this letter in writing so with that in mind we're prepared to rest our proof on the remainder of our points of unless your honour's have any questions and i'd certainly like to address them especially since i'm not trusting a couple of points in the i do have a procedural question for you and you know you said this case is procedural boy is it with judge who's making the st decision in the movie now and just because he reviewing everything very very that was never actually we will file a motion for leave to have it filed and we don't get a ruling on that so it was affectively not file  rd amended complaint so i will look at that and i appreciate your answer and your honor if i may not but you've explained your reasoning for it i would hate that i'm simply misremembering and i can't say for could keep track of all dates so thank you for your answer thank you very much you want to head to your answer mr bowles i have nothing more to your offer so without it unless there's a other questions he the the argument we've heard is basically arguing the merits i don't believe that's what's here before this court here the circuit court found issues of those issues were therefore barred under the doctrine of collateral stop while the circuit court gave the plaintiffs three opportunities to correct their complaint they refused to drop the issues of corporate compliance that had been determined to have been previously adjudicated in the federal courts the district court heard all of these arguments by mr fact phillips it was a summary judgment motion all the facts arguments were conceded the issue was whether or not consent acted as a defense or was dispositive to those challenges the court in reviewing all of that the briefing having a hearing on the two federal counts the same corporate argument you've just heard and asserted that they were omissions or misstatements of material fact that would have affected the decision again the th circuit treating them collectively said there were no emissions and no misstatements and  d so all the circuit courts done is apply that conclusion two judges in the circuit court both of whom reviewed the entire evidentiary record independent of each other found the plaintiffs were making identical arguments to the controlling facts determined in the federal action this is now the  in which the plaintiffs are making identical arguments challenging the issuance of stock to mr grabbers and his judge who's held that's a dead issue so it's been universally determined that be it felt consented to the issuance of stock to grades they're not thereby negating all the plaintiffs challenge counts all of which allege defendants noncompliance with the requirements for that issues and under the doctor collateralised stoppel which is why we're here plaintiffs cannot relate a gate that issue is a necessary element of any of the identified causes of action in other words plaintiff can fare no better here than it important to recognize the stock was issued over a year prior to the motion for summary judgment all of the issues addressing a activity were deemed fair game in that the plaintiffs were seeking to set aside the issuance of the shares to grants they had already been issued so i think it's misleading to imply that may th was some special operative day it was for consent and it was for the information it provided but the challenge to the issuance of stock was to just that in and it included the fact that the stock had in fact been issued at the time the district court evaluated summary judgment deemed somewhat can was deemed controlling but miss wales argued with him for summary judgment she had every opportunity to make the argument she wanted seven circuit recognized jurors a class b shareholder she had limited rights but she's been a participant all the way through the years and if it turns out that there was an issue she didn't raise we've included a section in our brief on the waiver i mean it just would be sandbagging to allow someone to go through five years of litigation as the plaintiff having having been a signatory to the seven circuit appeal and then say you know there is this little particular issue or some some issue that i now get to raise and it basically moo the last five years of litigation so we believe her arguments were made and if you look at the seven circuit briefing by plaintiffs i believe you will see that she made that argument and that the court acknowledged her role as a class b shareholder and still concluded that there were no omissions or misstatements thank you  letter in its opinion and it notes in that letter that she was copied and there's no issue of fact because this was summary judgment and for plaintiffs to now argue or claim you bring them to us in the record with i have permission to file those that's entirely up to you ok whether you want to file a motion or not i just want to make you aware that i do not intend bench judge who recognized that these allegations go to the very heart of the issue of consent but judge holly and the th circuit had already addressed no look at upheld the district court's ruling that defendants committed no fraud misstatements or omissions concerning the issuance of equity this is what this led to judge conclusion that this the issue when you look at the complaint the allegations about practice they all involve either an omission or a misrepresentation or fraud and that issue as been decided originated in his nd amended complaint filed in federal court now when you examine that complaint and i believe that this complaint is in the record and if it's not it is a public record which judicial notice of but when you look at the nd amended complaint filed in federal court you following that it has absolutely no resemblance to the mill practice claim currently before arrest or a conflict of interest and finally he claims he was damaged because in the goshen hearing the sale of contracts to a competitor grady's may not ever receive the full purchase price that's not in the malpractise claims for this court there are no allegations anywhere in the nd amended complaint in federal court involving the issuance of stock the may th letter or the so called major mention that the vast majority of the response to questions about ms will convulsions was mis wales argued certain things not that anything was decided and they  a final determination an actual decision on the merits not just someone argue something so we're going to all these cases no act someone or can something the rest of the federal claims were kicked out so it gets into state court they apologies that i have to actually be decided and it goes all the way back to the hoffman case a century ago but it has to be not just argued but there are no malpractise claims in that complaint that concerns me just a little bit and i wanted to direct your attention to a case by on home vs st james two thousand and twelve decision by the illinois supreme court again it was argued about all these omissions that the federal court decided that there were no omissions but a review of that very clearly shows that the omissions were about omissions under ten happened it's no missions that are tend to be violations under federal securities law so i think that's one important point to make and at the time when it's argument i would st know that wasn't the reason this case was dismissed it's not on appeal this is premature we shouldn't even be talking about timeliness it's not on appeal and i believe mr under it had argued the series of events at the federal court but at the end of it i found it interesting that he simply simply a disagreement with judge holly sounds a lot more like a pelleas acknowledge that judge think that it's proper it's and it's frankly not even really an issue that on appeal it's time because the circuit court to dismiss the malpractise claims did so based on the the application of