since in the last few years and see if he was a massive fraud criminally so six to ten people principles of n c if he had been held criminally liable for the fraud that they perpetrate i mean we've had those cases absolutely and so the discovered by the public and we are here today because ferals brought claims to recover that lost investment against multiple parties including credit suisse an investment bank that was responsible for inducing and helping to provide information to my client about and c f e in the investment opportunity that was in c f b but i mean you guys went to them first this investment as i understand it right barrows reached out to credit suisse and said do you have any deals decided on summary judgment if you have no evidence were you sign something that stipulates to the contrary agreed but in this case it is the court said in bass when you have a massive record that demonstrates numerous factual issues about whether or not fails recently relied on material and it's not in dispute these were several misrepresentation but so now i mean so it depends on whether you've created genuine issues no categorical ban on summary judgment on this issue i agree under certain circumstances but the court my point was to say that this court is in hated that in general when there's evidence in the record disputing the issue of her alliance but that is an issue for the jury evidence that you've designated to the district court i mean i will say at the outset and you can you can tell us where you designated things as we go along but you can't just back up a dump truck on the district court unload the entire record and say judge you know there's a genuine issue in there somewhere and we should get to go to trial i mean it's the district kind of went beyond the call of duty here reviewing stuff that you did not designate your honor i would disagree with the point that we didn't designate sufficient evidence to raise of reasonable fact finding a reasonable question of fact for the jury and let me address that question pursuant to a false circular and there is no question that the n c f the p p m was false in material numerous material ways it totally misrepresented the way the business disposed to function and as such that evidence alone was bad but they said your client said we don't need any help we know how to figure this out and we're you know we're sophisticated investors and the big boy your honor referring to a letter that was signed between credit suisse and pharaoh's and my first point your honour's that letter has no bearing and it's not disputed that that letter has no bearing on the ohio blue sky the secondary liability claim or the  seven point forty three a it has no bearing whatsoever because the question under the under that ohio statute is whether or not there were material misrepresentations made by n c f e that you relied upon that we relied upon and investing in  on something when you sign an agreement saying that i will not rely on the fact that agreement related to only to credit suisse and the information it received from quite its credit suisse it did not exculpate and c f e and in fact in the stock purchase agreement e specifically represented to farrow's that every document every piece of information it received about in c f e and its business was was accurate and true in all material respects and so what we're talking about here on the secondary liability the joint relying on anything you credit suisse has done and so you're saying for the for the blue sky claim the issue there is simply whether you reasonably relied on something  absolute is that what you were says when you agreed to exclusively rely on your own due diligence investigation on our own sources of investigation and our own credit analysis with respect to the securities as it is that were you coming from from this language yes because that language is focused on the information it received from quite swiss it doesn't exculpate and c f e it doesn't exculpate and see if he's failing to tell pharaoh's exactly what his business actually was doing and that's the whole reason why we that letter has no bearing on the secondary liability claim against credit suisse because what we're talking about here is n c effie's misrepresentations ok the secondary ok explain to me how secondary liability is different from primary liability  under the ohio blue sky law seventeen zero seven dot forty three a it renders anyone in any way that participates or aids the sale of securities in a fraudulent manner jointly and severally liable with the seller the seller here f e the joint in several liability party here is credit suisse and so under seventeen zero seven forty three a there has to be a predicate violation the predicate violation is seventeen zero seven forty one a and under that statu credit suisse received a four hundred fifty thousand dollars for placing the farriss purchase of stock within c f e and under seven hundred forty one a ohio law says that credit suisse would be kind of a strict liability it is a strict liability statute that's what we argued below and i think it's very clear from the case law the limited case law about the statute that says it's strictly liable if you demonstrate the predicate for the misrepresentations and again there's no just but let me just ask you on this one i mean here's my concern with this argument you're making number one i'm having a hard time seeing where you designated in the district court record that you know evidence supporting the proposition that you actually relied on something in the p p m number one and number two the p p m is just the start of the process and your clients are very sophisticated and they had to do their own due diligence in the m at the end of the day when they make the decision his way in the rear view mirror why is it reliable for them to have relied upon the minutely fraudulent statements in that document every aspect of what and see if these business was and based on that credit affair was followed up in ask questions both the credit suisse and the company about what does this mean what does that mean and then when we get to the final transaction and see if he again represents  piece of information you have received from us including the p p m is accurate in all material respects and so by demonstrating that fear was reviewed and relied in follow up on following figuring out how the company was supposedly functioning as good morning may please the court my name is steve brody and with the law firm of being in the country and represent defendant appellee credit suisse in this case the district court correctly dismissed all claims against credit suisse because fails has not as a matter of law established a tribal issue regarding justifiable alliance that is true with respect to both the seventeen zero seven point four one claim which is the primary liability came claim and with respect to the seventeen zero seven point forty three claim which is the secondary liability claim the facts are extraordinary in this case and the panel has already touched upon it my preference if it's ok with the panel is before i go back and tell that story which the panel probably is aware of from the briefs is to touch upon some issues that were brought up in the reply brief of appellant so that i can make sure i get to those and some of these in fact the court has already asked some questions about the first is this issue about  designated evidence and wants to be able to rely on this appeal on un designated evidence from the or bad eleven thousand pages that it  did present to the district court judge but only designated a very small amount the only legal argument that faroese musters on this point is a quote from the unpublished decision  evidence or the lack of evidence raised by faroese and i could cite there to the emerson vs no vote its decision for forty six federal appendix seven thirty three at seven thirty six which is the famous quote and judge cook actually said on this panel somewhat colorful quote that quote judges are not like pigs hunting for truffles that might be buried in the record close quote another t two at six thirty eight note for and i'll quote again rather than just dropping a pile of paper on the district judges desk parties must point to the evidence with specificity and particular in any event level can does not compel a different result here it stands only for the proposition that an appellate court has the quote power to can to power to consider the entire summary judgment record close quote not that it must do so it is perfectly within the province of this court and it was within the province of the district court to disregard any and all evidence that fowles did not designate below under binding sixth circuit precedent second point i'd like to make and it's a short one is faroese says repeatedly in its submissions for example in its reply brief on this appeal at page eight  that it was not put on notice that its evidentiary submissions about reasonable reliance were inadequate but the fact is that credit suisse told pharaoh's in credit suisse is opening brief on the your position i mean there are good let's set aside the question whether anything was designated and i do appreciate the authority you mention on that point there does seem to be some evidence though that  credit suisse is it suisse or swiss hands which continent you're on were very in paris ok there does seem to be some evidence that your client did have some awareness of the disparity between what and see if he was representing to investors and what they were actually doing over there i mean we have some internal e mails about you know did your nose grow and  things like that and so i guess my question to you is isn't it fair to say that your client did have a unique knowledge i don't want to use peculiar knowledge in a term of art sense but some some unique knowledge of the wrongdoing that was going on it and see it so at the threshold i would say that this case the decision below concerns justifiable reliance sure which is completely separate from knowledge and that was a contested issue and it is it is certainly credits reeses position that it did not know any of this about any of this wrongdoing in fact credit suisse lost more than two hundred fifty million dollars in itself on on the securities issued by and see if he which is a strong indication that it would not know would be illogical otherwise but in terms of the strict liability that we were talking about why this thing not not sufficiently well i would so there are three reasons why it's insufficient and this is the seventeen zero seven point forty three claim i take it that your honor is referring to  first is that fellows cannot identify a specific false statement on which it relied on a specific false statement in the p p m which it relied in there was extensive discovery extensive opportunity to identify any such statement they absolutely failed to do it at best they made very general statements that we generally relied upon the p p m but no specific statements upon which they relied and there you mean they didn't point to one in particular that was important to them i mean they were false statements and in that p p m right you know the advancing non advancing age of receivables reserve accounts right well all sorts of responses to that first the age of receivables and the reserve accounts those are all things that were learned by pharaoh's during its five month investigation of this company and in fact i can give cites on that if the court i just tried to clarify what you were saying you're saying you're not disputing that there were false statements in the p p m you're saying they didn't point to one particular and show that they relied on that one i would dispute it to a certain extent which is this if you look at the p m what it describes is actually how the program should work just about how the program actually has been working and i think that's that's an important distinction if i may return to  that they could rely only on the representations and warranties made in the final purchase agreement this was a business decision made by the parties this is a business decision made not by credit suisse but by n c and by fair us and the business decision they reached which which is contained in their documents and couple documents signed by pharaoh's in fact is that is that far less than any other investor could only rely on the final purchase agreement and credit suisse was not a party to that final purchase or what was your client's role in this transaction how would you characterize it credit suisse was a placement agent as a placem f e and credit suisse was in the possession of firms and fellow said that it had reviewed that engagement letter and what that engagement that it was in their possession by virtue of having been offered by by your client it was in the it was in their possession because i believe because it was delivered by the co placement of my client which is called the shatt group ok that it was delivered by the schatten group to  and what that letter said basically is credit suisse is not taking responsibility for the accuracy of any of the information that is soley the responsibility of n c f it and that's absolutely clear in this engagement letter which faroese admits it reviewed so you guys are just kind of a match maker and then it's up to farrow's to go that route around and make sure they're comfortable with the deal so that's fair yeah it was our our responsibility to make introductions to present opportunities but then as it was in this case spent five months doing its own diligence pharaoh's established direct lines of communication with senior officers and see if you will let me ask you about that because you know i mean this isn't our first and see if you case i've had you know a case or two with some of the folks you're talking about the direct line on the other end of the direct line and they're all in prison because they were to complete liars and they created false documents shared gibson all day long roger welcome barry all day long so i was i can't resist asking you i mean what is the benefit of that direct is if there's a commercial party out there that wants to commit fraud sometimes it's going to get away with it and sometimes it's going to get away with it for a long period of time and here it got away with it for a long period of time but what i would emphasize is that in those other cases in the prior  testimony from cherie gibson and others what was what was found is that and see if he deliberately lied not just everybody generally but specifically to credit suisse and in fact doctor d documents before sending them to credit suisse which was clearly designed to true specifically full credit so you doctored tons of documents and so i mean that it is interesting you know to hear you at least emphasize that your client lost money etc but what values this direct line is my question when they're just a bunch of liars on the other end of it well the value of the direct line is from our perspective in this case a justifiable reliance issue which can fellows say that they relied on credit suisse can fairly say relied on the p p m when fowles had the full opportunity and had access to the documents and establish these independent relationships and even the day before they made their investment physically met together with lance paulson we his case to you know yes exactly what went out went out to dublin ohio visited with mr paulson and his colleagues without credit suisse being requires justifiable reliance right under both claims and the district court judge you know if that was the basis of his reasoning and it has to be reliance on the p p m it can't be reliance and something that lance paulson for example would have said in that meeting i'm working my way there's the peculiar knowledge issue which follow spends a great and amount of time on so i thought i should just touch upon that if the court would wouldn't those me with respect to that one issue in that limited time i have  first off at the threshold the peculiar now which exception does not apply under ohio law and ohio law is the controlling law here so that basically takes care of it but there are many other reasons and i will go through about the reserve accounts they certainly did and they did they had access to information about how those accounts moved back and forth every month they certainly did they had in possession with respect to the reserves shortfalls before they invested various documents including the ten dicks one three zero zero three three zero nine one three zero five one through five seven one four four one nine hundred twenty six i won't name all of them one four one fo to focus on the secondary liability claim that claim is based on whether or not and see if he made material misrepresentations in the p p m on which led to pharaohs relying on it and elderly invest so for example one one was about the reserve accounts well right antsy ok so just for example one is about the reserve accounts absolutely and as you know and see if he was moving the entire balance of reserve accounts back and forth depending on which one was being tested fares did not know that clear so you knew what movements but that and other people thought but if you see the entire balance going back and you can see that you didn't you know we didn't see that did you get i mean did your due diligence include  actual accurate balance information for the reserve accounts you're saying that that was doctored information that's correct ok absolutely and more importantly more importantly we noted in our summary judgment went back up th and let her focus on what the pleadings were in the court below on the secondary liability claim credit suisse in its opening motion argued that fails reason reviewed and relied on the n c f p p m that was their position and so in response that we said yes you're right we did review and realign the p p m and therefore we didn't have to marshal any additional evidence of the supreme court's evidence then in its reply brief credit suisse argues no no we didn't mean that you didn't rely nancy your didn't specifically identify what statements you didn't rely on and at that point under this court's precedent in a royal issued in one thousand eight hundred nine the district court is going to rely on that basis for kicking various as secondary liability claims it should have provided us with haven't you haven't filed a motion you're absolutely right we did not file a motion but not a motion is not required in this court's precedent this court reversed a summary judgment grand in entire royle because it found that the district court in that case should have given the notice to the non movement and an opportunity on its own accord to amend his pleading to vie specificity if that's what the district court was looking for and that did not happen here and that's important the we only were required to limit it to to demonstrate sufficient evidence to raise a fact  we didn't have to marshal all of our evidence and the evidence here was that the c f e was a massive fraud they told to pilate everybody knows that and so that should be enough and the second circuit decision ignites not enough i mean your client is a sophisticated investor who had all kinds of opportunity to do diligence goldman figured it out i mean how come your client couldn't figure it out because that information was provided to you know goldman figured it out as i understand it kind of doing their due diligence you guys asked for easy to forward diligence material correct and it was good and it was a booklet there was a there was a about a twenty page booklet put together of questions that were propounded by goldman sachs and c by c i v c that was that was answered by credit suisse and c f e and schatten group couldn't you have asked the same questions i mean why did why did they why do you have some right to piggyback on goldman's work i mean you're i don't know what the due diligence was between goldman sachs a we were not privy to that all we reserve accounts were missing tens of millions of dollars there is no evidence in the record that farrel's had that same level of information and so the goal was i want to clarify whether or not there was a point where feroz was denied information that it it was requested by pharaoh's from credit suisse credit suisse had an information less than a month before credit before pharaohs asked that information and the district court in the no holders order specifically said that was evidence that was material that was withheld from investors and therefore even if  hadn't taken additional investigation it is a genuine issue of fact of whether or not they could have discovered the fraud because christie's had information that he didn't disclose to others including pharaoh's and that there was a specific request for that information by pharaoh's the sophisticated investors that make up that group that's correct and even the placement agent at her deposition by chris with said my job is to provide anything from the company that the client asked for and they didn't do it here they didn't do it here and that is we'll have the next case please