mr burstein neglected to prosecute two actions he was contractually obligated to pursue and the and the fact of neglect is not arguable although the district court did take a position on the consequence of neglect as to one of the cases the st of the cases is the case we refer to in the papers as the perry action the retainer agreement require dr long to pay three hundred thousand dollars in a nonrefundable flat fee payment in return for which the burstein firm obligated itself to do all quote all work required for discovery  pretrial proceedings trials or appeals that is was almost completely ignored for nearly two years but the initial question however is whether the retainer agreement contains an as the district court erroneous lee found the retainer agreement in fact contains no limitations at all on dr long's right to seek damages for breach or for torts and no limitation at all in my in my opening brief pages two thousand five hundred and twenty six the reply brief it six and seven the cases that make it clear that the benefit of the bargain damages are not consequential in addition i'd like to add a case i didn't cite in my brief tractable energy men marketing versus a p power marketing at forty seven fed rd eighty nine and particularly one on the i know twenty where this court held that for nearly two hundred years it has been recognized that a party who is denied the benefit of the bargain of his contract is entitle to receive that benefit back and damages look you know these damages are going to include a cost of getting a substitute counsel and doing all these other things anything like any writing or any kind of well your honor the the allegations of the pleading make it very clear that there was a discussion that the would have to pay for all the work required for discovery pretrial proceedings trial were appeals is three hundred thousand dollars and in fact paragraph that's not what stake here is what he's going to get liability in this is a very it wasn't clear that he was paying more than that he had a local counsel that the lawyer was being paid by burstein or being paid by dr long well dr long paid the local council so he was paying something there is a question which we will address as the case moves forward as to whether some of the work to be performed by the local council should have been performed by the bursting firm but that was not an argument that we've raised as yet but i ask a question about the breach here  paragraph three of the retainer agreement seems to contemplate exactly what occurred here it says that you dr along have an absolute right to cancel the retainer agreement and when it says if you were to discharge i'm just having trouble understanding how it isn't true that you bargained for a situation in which burstein could withdraw with permission of the court and if the permission were granted then certain consequences would follow it's correct there are consequences as to the fit but as we point out in our brief the plan why is it a breach you see why is it a breach for bursting to ask to withdraw and be allowed to withdraw by the court you had the opportunity of course to object that he shouldn't have been allowed to withdraw and i believe that objection was made and your honor the fact of the matter is that he had a right to withdraw but not a pretext or a grounds and the court did not rule on the grounds for withdrawal of the then to say that the relationship between the client and the attorneys had broken down but you argued that you shouldn't have been allowed to withdraw well not me but yes yes you know you collectively they argue that you should not have been allowed to is the client's attorney is lying about the grounds and why he wants to withdraw and we have plenty of allegations that prove that more than plausible under the standards applied by this court numerous times which i need not discuss with the court more than plausible that it was pretextual if the attorney does go to that length to try and get out of that case it is i i were i the counsel for mr dr wong at that time i would have said you can oppose the withdrawal because you don't want him as your attorney that relationship has broken down now the fact that he raised that issue did not undermine the fact that the relationship broke down and that was the only ground on which the only ground on which the for mine court allowed withdrawal so it doesn't really speak to the issue of breach or damage and then you're saying the breach would be a breach of the duty of fair dealing or something because he is allowed to ask to withdraw but not on for extra allowed the contract does limit damage wait you're saying that if there if there is not a sufficient allegation of pretext that even if there was a good reason to withdraw and the court granted withdrawal that would still  didn't never surrender the documents that he claimed he was trying to surrender we have e mails proving that the parties negotiated this and that every single ground on which he objected to withdraw dr long agreed with the only sticking point was that bernstein said he needed two months to do for the discovery even though he had been in the case for two years and established the discovery schedule himself which he was not prepared to live up to so that for all of those grounds it is absolutely clear and we have it all in emails it's not just supposition we have it or not just discussions we have in emails that d long agreed to meet every objection mr burstein raised except to delay the case another period of time after a two year delay already now there are just a couple of other points i see a matter of time but if the court will indulge me for a moment the theory is the issue of whether damages from the settlement proposed settlement would be speculative and there are numerous cases that show that damages from a sub optimal settlement were no settlement at all is actionable the question is did we create a plausible did the allegations create a plausible basis for asserting that a settlement could have been reached here and we in fact did show that there was no interacted tori's no demand for production no initial disclosures for two years a strong case for which your honor reviewed in the prior proceeding and summary judgment didn't negate the fact that didn't negate the fact that the four million dollars settlement that perry received was enough now that there might be six million dollars of damages if it were properly pursued and judge reggie said four million dollars to six million dollars isn't that make a difference so the question was was it likely that the trial had partners parties would have paid more than four million here the question is entirely different the question is would boy george perry and his carriers have paid more than zero had they been approached to settle this case they paid nothing and s was very clear that if the fee was not earned it would be determined as a fair and reasonable value so therefore it is not a nonrefundable thing with respect to the argument that action plaintiff concession that it was on precedent it establishes exactly why this was not something that was reasonably foreseeable and it was not something within the contemplation of the part of the parties if dr long had wanted such a the absolute right to cancel and then it goes into what the remand cations are if dr long cancels or if exactly what happened here the burstein for teens in a water that says you are allowed to withdraw from the case and this wasn't a pro forma order that was obtained in state court this was a federal court judge who heard a motion to withdraw and decided it was appropriate for the person firm to withdraw from the case with respect to the legal malpractise in the parish action faith that this provision contemplated that simply because the district court granted what by that point was virtually uncontested then whoever's fault it was the somehow be ok that i want to point that goes to the heart of the argument in our brief with respect to the relief being sought by dr long as so draconian the courts in new york have ruled on this issue and have said that when you withdraw from an action without good cause which is what councils referring to the relief that you were entitled to as the client is a refund of the fee you the provision is that if you withdraw without good cause you forfeit your faith and in this case we have made it very clear the argument that we were raised and that what was being decided by the district court was had nothing to do with the three hundred thousand dollars and whether the doctor along have specifically said that the relief that you're entitled to is that you make the attorney forfeit their fee if you can show that there was no good cause for them which will so with respect to the the perry malpracti action here the appellant rely on a claim that there was this delay in proceeding in the case and in delay was caused and i think you have the probably one of the most gracious decisions which is judge sessions the underlying district court judge who talks about the delay and essentially gives me a couple which he did not need to do and said look i understand why there was some confusion as to why this case sat around for a year let's get going on it set out a new discovery schedule and the case proceeded to head some to the extent that plaintiff relies on this delay as being the cause of the settlement moreover the settlement was obtained that the sort of settlement that to miraculously change the outcome is proving to be nothing that is anything of the magic bullet and more importantly the speculation that simply because mr perry as an attorney had insurance that somehow open the one that plaintiff is making this argument that the case could have been settled that was dr that was on mr rock that he was the attorney of record at any point time if there was supposedly this burning desire by mr perry to settle his case why wasn't why was there no communication why was there no offer to settlement because there was no mr perry was ready to litigate his case and he just again it goes back to the speculative aspect of the case is that and that's why you have a lot of cases in new york that specifically deal with the issue of when successor counsel has an opportunity so in this case if the argument is that the malpractise was based upon the firm's failure to get something in discovery and again the only thing that we've ever heard of this magic bullet is the driver support and that didn't change the outcome of the case but to the extent that the perry asserted that the bursting firm made some type of error and was negligent in their handling of the case when they had it that negligence can no longer serve the proximate cause ation chain is cut off at the time when the successor counsel and plaintiff have the ability to take the case and continue going on with that which they did the court has no further questions  thank you thank you for generously allowing me the same time in reserve let me try and address the issues that the court has raised in that my counsel my friend has raised  st of all counsel is not counsel as this court is well aware mr ogden who according to the allegations was to mean by mr burstein as incompetent was not burstein who is well known brags on his website that he is able to get great settlements because people know that he's willing to go to court and go to trial and in this case gave the opinion that there was real money in the case now the fact of the matter is there was a very short period of time between the withdraw mr burstein and the commencement of the summary judgment motion being with new discoveries give you the court said ok it's been delayed but now we're going to start because of his personal opinion or his unwise decision chose not to make a motion to delay the summary judgment motion for further discovery and we're going to surmise no chance you're going to have a malpractise action against  not adequately pursuing a remedy with regard to the malpractise by burstein who was supposed to be pursuing a malpractise action against perry all on the theory that there could have been this settlement and your honor that is a very very different situation here there could have been a settlement in two years and i would say your honor and what is what exactly is the evidence that there was a settlement on the table before discovery took place the evidence that there was a settlement on the table is the allegation that perry said he was willing considered settling within the limits of us policy the evidence on the table is the fact that perry was facing if truly a if truly analyzed which hadn't been done twenty million dollars of liability potentially as well as punitive damages and so there was huge potential liability the evidence on the table was that there was a strong suit there was some criticism of the impact of the jarvis report which in the triad action may not have affected the judgment of the triad the finance to settle because in that action those defendants may have known all the information dr drivers uncovered but perry and so the evidence on the table is that there was a willingness to settle that there was that was expressed that specifically pleaded there was substantial ground to settle and there was an opinion by mr bernstein that there is real have real money in the case now if you put that all together and compare that to the plausibility standard just reiterated by the court recently in the palin case you know it doesn't have to be the most compelling evidence it just has to be more than purely speculative an strictly has here the case is on plausibility say time after time you need concrete facts that show that the recovery was plausible and i might add just one thing on the key term allegation if i can just transfer that for a moment with the district court found no evidence of santer we cited whole bunch of evidence as well as the war that the district court misunderstood because the reality is that the foreign that the false claims act does not require knowing falsity expressly does not require that you don't leave requires deliberate disregard or reckless disregard of true facts and we established deliberate disregard and reckless disregard through dozens of  of complain and my friend mr sure did not lynch one of them instead in his brief i believe it was page forty eight dollars he only restates the district court's erroneous claim that knowing falsity is required i'm not even sure now your honor is the plausibility standard and that is a very low bar and rightfully so because of the th amendment that requires things to go to a jury unless the parties can prove it on summary judgment and  case before judge droney before on appeal that was a whole different situation and i pick up judge broke germany's comment that we don't know that burstein might have had he conducted discovery uncovered more evidence but we don't need to get there right now that will happen as the case moves forward and we uncover that evidence is that if there is some what we have to show right now is that we have alleged a plausible chance for a valuable settlement which all of the cases recognize can be appropriate in the proper tases we have concrete allegations proving that chance of settlement was squandered so thank you