three minutes for a bottle i'm happy to address the res judicata and confessions of judgment issue if the court has questions but i really want to focus my attention on the standing issue the district court in devon three dismissed the claims by george speight or in devon dr devon dr lyon bill based on a finding there were no allegations of reliance on the nd amended complaint still well they don't seem situated precisely the same to me but why don't you explain to me if you agree or disagree with that and then how each of them separately pled or alleged rico standing well that mr spader was a principal in libel and the number one and number two although the allegation is the complaint as a relates to reliance by mr spader was different than mine bill the fact of the matter is that the conclusion of the court in dr three that there were no where in the complaint what are the allegations in the complaint that you point to and say that's an allegation that sufficiently alleges a reliance that that shows yes your theory is that mr mr speight anything that happened to any of the property that mr spader had an interest in is by finances but where is this preserve that there was we addressed the standing reliance issue in the briefing on devon drive to nevin dr three because it hadn't been addressed and it was an argue we incorporated by reference  you have a different one but what theory if you consistently to observe here well i want to take a step back and make a distinction between causation and reliance are not the same thing and i would suggest that the by reason of the phrase by of this throughout the complaint hundreds of times and that the assertions of of causation are that the scheme that we described in the book in the complaint didn't fact cause the losses that we allege occurred in the complaint the as it relates to reliance reliance can somehow be can somehow be used in proving causation but reliance itself is not the same thing as causation number one and number two the bridge case says that we don't have to allege reliance because my element of rico was that is you don't have to allege st party reliance but it doesn't say you don't have to opening paragraph is st party reliance is that not to be understood the statements about reliance in the context of what the it's or not what they stated doubts that they are discussing well my point being that yes your honor to answer the question but the holding in bridge relates to reliance and doesn't use the fur phrase st party rhymes but even so back court and this court has held in cases of concealment when there's a duty to disclose the can't possibly be reliant is there because there is no representation whatsoever for those who are mission cases that was a theory you used below that's not a theory that you're pressing on appeal and actually riddle regulators that's preserved but let's assume we disagree with you and we think that you know bridges about st party reliance and reliance in an ordinary case is how you prove causation in a mission cases are separate so set aside the legal issue  rd party reliance i would i would concede the point it relates to the regulator clear the ones that and i disagree with you we cite the consent decree from the regulators which frankly that consent degree was in response causation theory you're seeing is preserved and we can argue about that but that it i don't see any other theory that's preserved on appeal here it should be focusing on that one well indeed here is there any other reliance or causal theory preserve your your adversaries they focused on this they fared title not to shoot at a moving target you don't get to smuggle something in their reply brief is there anything else  contend is preserved apart from this f d i c theory as it relates to rd party reliance now ok st part of our lives and anything else any other great let's go with you here for a nd say take the qualifier off anything about relian saw allegations that she and roads were hurt by this i didn't see an allegation that spader was directly injured i mean you have this proximate cause ation issue about spader as partner to roads but i didn't really see that developed  briefing but you can tell me if there's somewhere where where you say it's preserved and you can you're free from we'll look at it what's the what's your response to your adversary's objection if the ice use theory has too many moving parts too many links in the chain of causation that usually we just stop by looking at the direct victims here we don't go down to all the problem because they should the causation and how do we assist the stam a jew is i thought i thought you know cases like ns and hermie didn't allow that kind of well in direct causation with all due respect the  younger of the court below was one standing not on causation number one number two we've pled causation more than adequately and to me that's an issue of of fact that should be decided either a summary judge who or trial not an issue when it wasn't considered by the court nor was it already below biber party was an issue that was addressed the causation issue between the f b i it and these entities but it is clear that one of the purposes of miscommunication of the f b i see under the circumstances was precisely so that these entities would get injured and that's what the plan was about  but your you took the position in front of the district court and you have in the weak way here as well that everything that has to do w he said it's made it impossible for you this is the position you're taking with us still that it was impossible for you to do anything except deliver back to the court the same plane with and he's making trouble and they should get him out of the partnerships might never disclosing he was a fifty percent partner in all of partnerships during that fifteen month period park bank and mr earle went into delaware county to that same judge to try to and i guess your answer my question your view of this case is it's impossible to talk about mr spader without talking about everything it just cannot be done that's correct or rather because his interest if you don't you're not taking the besant relates to the partnerships that is indeed impossible because it is them unless you look take a step back and look at everything that happened here at all of the partnerships and all the communications between the bank officers and the offices of the entities and mr spader and mr earle and what they did and how they went about this path to deprive him of those entities to put them on and to rob all of those assets and then to mr recht funds and to make false promises in order to get to their goal it is all interrelated and you know the opportunity to make an effort here that really now having preserved your i i would answer that by only saying i felt obligated to stick with the complaint i had i was not comfortable pairing it down and running on a complaint that i might get by on but that i'd have to issue because i think once i disclosed to the court the underlying basis of that argument it runs through the entire complaint and exposes fallacies throughout the entire complaint st night did the district court  any of the parties were able to find any case where the adverse domination theory of the fraudulent can concealment theory applied to escape the precludes of effects of race judicata normally applied to poll statutes of for not taking steps to preserve certain rights when they and the entities were under the control of one of the coconspirators that's fundamentally unfair you can't tag with a race to cut stems from our doing so failing to do something when when we'd be injured people couldn't have done anything because we weren't in control the end what why is that oh and not a thoughtful and appropriate application of the princip behind the doctor that st donna i actually do not disagree with you judge or however you need to write case this is totally in totally wrong kegs for that theory to apply and here's why st of all mr counsel on the other side argue that mr spader assuming that he is the be all and end goal to the group of plaintiffs was in their words exiled from the partnership's was ordered not to have anything to do with the partnerships and it was during the succeeding thirteen months that all this ready turmel stuff happened well that's inaccurate because if your honour's go to the appendix joint appendix page seven hundred and eight you'll stipulated to the entry of an order appointing a neutral to run all of the entities because the two of them earl and spader were moving them and destroying the partnerships which is why they  into the home with more bank secondly far from exiling mr spader or any of the parties plaintiffs the court required them to enter into an operating agreement and the alternative forty b twenty one b yes sir right yes that we're here review yes or are we obligated in that circumstance to be taking the allegations of the complaint this true yes unless there are that you're obligated to take the well pleaded allegations of the complaint as true and the record in this case pursuant to the judicial notice that the court took including these underlying documents court records court orders specifically provided the parties plaintiff not only with continuing going forward access to all financial information and documentation but it provided in this is that j a the court when the court you're asking us to take to dish will notice of the truth of things said in documents which is not the typical function to usual notice judicial notice of another court action usually to say hey i can take two dishful notice that in the bill were county court of common pleas you pled the following things and that judgment was entered against you is it ordinary to say and i'm also going to take judicial notice and accept as true everything that was said in any document that might have been submitted in connection with the dover county court of common pleas case i've always had difficulty your honor with taking judicial notice but not necessarily except in the truth of what is said and i admit there's a tension there and i'm just not sure i completely can comprehend but what i do know is that the record below of which the district court took specific judicial notice contradicts everything that they have said about adverse domination it contradicts their arguments that for thirteen months they were in exile if they've played it and if they've played it in their complaint i think your honour's are free to look at the underlying record of which the lower court took judicial notice to show that it's a prevarication it didn't exist we move past this yes that the fraud claims here are not being were not rejected on the merits there is so in the nature of the quoted counter claims that they couldn't have that they could not have pleaded because if you look at the allegations of the act bill complaint i'm sorry of the pac bill petition to open a strike and the defense is that they raised in the state court proceedings you'll see the park bank miss they allege part bank missile applied loan proceeds same as here it goes to the amount of the obligation and whether or not there is a default they misapplied this and that but they don't allege flaw in their motion to reopen unlike rowe it's i disagree your hon allege improper loan administration and freud paragraph two of the underlying complaint they failed to monitor the construction loan proceeds same as here they compound did the mismanagement by misapplying grants receive hit titian to open or strike you will find the virtually identical allegations and certainly they bear the same essential similarity to give rise to the race judicata effect paragraph nineteen your honor at length but these mis house is different they're not in what an liquidated counterclaims they were raised as as defenses those defenses necessarily involve everything that's being alleged in the rico complaint in federal court paragraph forty seven of forty eight they failed to properly applied to show shea loan proceeds to pick bill paragraph forty nine and fifty they used the monies that they collected either from part back and need either from the repayments or from rent brief in this matter you'll see and it lists all of the alleged partners in these partnerships predating september th two thousand and thirteen while i don't necessarily agree with them one thing is clear and mr listed as a limited partner in each and every one as such as a limited partner the laws is hornbook that he doesn't have any independent or separate claims of the partnerships unless there was a particular act or action that was taken towards him so i do not believe that mr spader stands in any special category when you say that's not a flaw i take i take his argument to be a mr barry will correct me if i'm  that i'm i was injured in my property to my limited partnership interest because of the fraud that the enterprise undertook  so it doesn't matter that i wasn't in control or that i was the person directly to fraud and it's enough for rico standing purposes that done to i b m he's a shareholder he stands in the shoes of the corporations not individually and mr spader if he has any claims they would be derivative of the limited partnerships but if there is a direct fraud t because we're we're running low on time here what's your argument against rico standing for lying under a bridge the supreme court made it very clear the st party reliance was not required it didn't address the issue of rd party reliance subsequent cases in this district including lynch by judge goldberg indicate that rd party reliance in some form is required because otherwise we did we'd be persuaded by them because we're the statute says you must be injured in your business or property by reason up a violation of the statute you st need to look at the predicate acts and one thing i think is important is that the allegations of reliance that that they have made here st party and rd party have nothing to do with mail fraud wire fraud or any predicate acts of my reason the can be written to be a causation statement right there there their assertion is we were injured by reason of those predicate acts that in fact judge goldberg just got the long long there's in fact bridge tells us that you don't have in describing what mail fraud is you don't have to have reliance defraud so that the judge had the wrong standard is raised judge i'm sorry maybe a cassis for clearly this way with judge goulburn right or wrong to say there has to be a reliance on the mailing or the wire i think he regulator yeah now they say that's bridge right and is no wrong about that because because they want because st they don't identify any specific mailings any specific wires any specific or lines secondly their entire argument is undermined by the fact that the f b i see entered a consent order against park bank so that they were not misled at all there was nothing that they were confused about because if you believe their argument is to braver times i think they plan that the f b i see was misled and they have pled that they were injured by the scheme to defraud and under the law that's enough yeah i don't think they cleaved that the f d i c was misled what they say is they did certain things  to make it appear as if they were performing loans implausible it doesn't make any sense that they would as soon as you say that are to take us into fact steve zissou you say that's implausible who would believe that that's what they please you get to say to the jury not the district court judge will be six ray no this is this is what they plead your honor this is all on the face of the complaint it's two hundred dollars paragraphs of of fact after after fact we're entitled to parse those facts and analyze them from a legal perspective not to challenge their truth unless like in the adverse domination situation the underlying record completely belies what they've said when they have not play any action by the f b i see in reliance upon these alleged predicate acts in fact there they just sort of nebulously talk about it and i think it's an after the fact argument don't read instead what would be helpful is if you would answer the point that mr braverman asserted which is mr it frankly it just doesn't make any difference what a but that doesn't feel responsible period there the argument is that's there's well established law that says individual interests holders whether it's a member in the department ship or a home shareholder a corporation does not get to have standing to argue injury to the end those are derivative injuries and we've got decades of want to tell us those sort of folks don't have standing why are they wrong to raise that legal princip when you say everything that happened all the o p s happens and i don't disagree with the legal person more what they're raising what i'm saying is that the rico statute allows mr spader to bring a lawsuit against rico participants for injury he suffers as a result of the scheme so you're certain is that rico standing is more generous than ordinary stanley he wouldn't be able to make a claim like this in court against the managers  or the general court or of the limited partners eyes but he is in your view rico's a broader and more generous standing standard on the language a statute yes one that would be or best authority it would be the statute i don't have as it relates to raise your kata i believe my opponent is just simply wrong on the law in pennsylvania counterclaims are not permitted in confession of judgment actions and even in but defenses are right they are but they're not the same thing riverside dischord riverside described the difference the fence is a side off to a claim by the back and affirmative relief is not available can't there be aren't there there are certain counter claims which are not defenses but aren't there certain counter claims which are also defensive that's correct your honor but under riverside again they have to be precisely the same we have more parties we have more more parties in the in this claim than i do in those confessions of judgement i