and ultimately their employers and paid the cost how can i just try to cut to the chase yes even though you have time it's going to go away pretty quickly yes thank you i'm a california lawyer i've practiced for a long time here and i know that the state compensation insurance runs very sophisticated very big involved literally billions of dollars over time you've got very good lawyers you're one of them i'm sure i think and here you have a situation where you have an allegedly rogue lawyer who reached a settlement but then he was out of the picture and somebody else got involved in that with with full knowledge you settle it again and it contained the typical california general way we're cover everybody in the world fifty forty one i think it is and included in that is an allegation about agents and the district court said if i recall  provisions included yes good agents and so on the district court says hey you know there may have been some this and that the other but you just you covered everybody here and you had good lawyers they had good lawyers what's what's to argue about here why  line under california law with that kind of a situation the whole purpose of that is you know you may have forgotten something or maybe some cause of action so you want to be sure that whether it's mentioned or it's not mentioned unless there is fraud in the entry of the contract itself it's just done and the district court concluded with good counsel on both sides everybody thought of everybody and everything and if they didn't they threw in fifty forty one and that takes care of it because they were agents i just i don't understand why we're here in light of that situation because the extensive fraud is something that allows the parties as is and how is a six this is intrinsic is state if the court had only looked at two thousand temp prior evidence then perhaps he could have been making an appropriate statement however he was talking about suspicions and he was not talking about evidence the workers judge arbitrator at page forty eight through one little word literally noted that if the if the medical protocols had been not based on science but instead for the maximum  silly agree with you so you should side of your big people you were able to make a decision you clearly had to know that there are all kinds of ways for encodes bad people to do bad things and yet you're saying well agreement as a condition of the agreement that's exactly what was done here in fact i would like to know if so you're saying that you rely on them saying there was no fraud to be a sit in that was your insurance that there had  any false billing even though you had just spent years investigating whether there was false billing the question is whether duckster sachs state of mind was such that he was aware of this fraud we did not have evidence until this case that in fact d in fact if you look at page pages two three five five to five six that stuck to direction zax own declaration where in his face of from january one of two thousand six through the summer of two thousand and nine he atten every hearing in the worker's comp proceedings including eighteen arbitration hearings he also goes out to settlement meetings both the july thirtieth and the october ninth settlement meetings with mr roth and his attorneys have just discovered all of this have been no problem at all might have been very expensive item every time and so you could have done it they wanted to now the way you made your decision and look at your internal purposes and you decided i think so we don't want to do that so you reached an agreement you were happy about it they were happy about it but your reached an agreement how are we supposed to interpret the fact that you had every opportunity to find out all the things that your analogy that you have been poorly done by  worth it to get this thing settled there was a lot of money involved you knew you could on the discovery they knew they could have done this covering he said i don't think so let's not do that and th investigation and if there's rather is fraud and you could prove it or not and i'm not even sure i understand why you think whether he you know how to have a true appreciation of the circumstances matters well it does matter because see from no court criminal excuse me the d a did not even charge dr sacks and so we have no information other than what mr brock might have known we did not have information about this case there was one person handling it for three years and he had all of the information all of a sudden to really expect that state fund without had this information suddenly he said because he had it is just not acceptable because he was no longer don't you know you had referred this for a criminal investigation clearly thought fraud was involved clearly so you know you had your former employee and vogtle taken his deposition i think you did actually at one point did you ask him about it were the files were all these allegations and so on i can't speak to that you're out of but i would say that i would find many statements made by this former employee to be questionable throughout the entire matter but you have to look at after the fact that's a whole point  matter they knew another tourney was handling part of the case but they did not invite him to the july thirtieth meeting they did not invite him to the october ninth meeting we have page numbers where the it shows that both to the point that my colleague mentioned you referred this to authorities for a criminal investigation you only do that if you think a crime has been committed rico as a criminal element to it given that fact  doesn't defy belief that you relied upon the representations and warranties in the two thousand and settlement the carriers and workers comp are required by law to report anything for which they have a reasonable suspicion it and how their crime was committed we learned about the orchestration of that crime in the evidence in this case it was not available at all until this case you tell us not to go for it because you want to sell go ahead i'm sorry i  limitations directly do i have it right that there were bills say after the statue of limitations period absolutely on that were fall that under your allegations were false billings rec'd requesting payment falsely requesting payment yes yes your honor and it went right through to twenty thirteen and that's in the also his knowledge of the collusion with mr brock in order to have that initial agreement go forward and it is the connivance which is very clear by the way they had concealed all their acts from any other  even though they knew another lawyer was involved with some of those liens and back and i went along with enforcing the wrongful settlement agreement is the essence of connivance so you have this connivance argument that i think is that the defendants wrongly tried to enforce the two thousand and nine settlement and that forced you into the two thousand and ten agreement in order to get rescission of two thousand and ten though don't you have to offer to put things back in the  circumstances that they were which would mean let's go back to arbitration did you ever do that we have never said that we would not go back to that i think you have some offer affirmatively did you ever offer affirmatively to put things back in the situation they work  minor standing is it less you can point to something else that you have to timely offer to put things back in the circumstances they were before the contract or trying to rescind and i don't see any affirmative statement from you that's in the record doing that right  my understanding is that if they were to agree to a recession they would give us a ten billion dollars plus interest back and then yes we would be outdone here and we would be at the workers comp but as the party trying to rescind i think you have to make that  affirmative offer let's go back to arbitration let's start this over again but did you ever do that it would be i cannot say absolutely i have would have to check the record i went through quite meticulously and i mean they made this argument in their briefs so you thought like it's coming out of nowhere well would absolutely offer to agree to what you did you make that offer what they were asking us to do was not simply that they were asking us to go back to the same stipulations and this and that the other thing they practically defendants so as i understand it the claims against you and of clients were dismissed solely on such a limitations grounds that's incorrect your honor that's incorrect that's ok correct tell tell me what's correct somehow got the new job for mr roth at global holdings that's the case against dr klein now what was the ground on which the district court dismissed the claims against your client's court i have the order from judge carney basically says if there is insufficient evidence that the raaf was involved in this alleged conspiracy to illicit enterprise that you cannot have a record hearing which is physicians mobile medical group none of the other and it isn't anything to do with it it's part of the record number one the at the time that they had done business in central valley was between two thousand and two and two thousand and five they were out of business in two you cannot do that it's a consolidated actually it stops there what they are alleging right now in this appeal and it's something new that they have come up with is that in two thousand and eleven arbitration with judge seamers and they said no and that's reflected in the record in a declaration by mr murphy who was also on that call and was counsel for state from below the e r on that please i do not have it handy but i will to a certain this rico case if i might just quote these are in the record but not look quote in the brief good seamers had already ruled on their argument that the zacks defendants had provided unnecessary unnecessary treatments what did judge seamers hold quote again there is no hard evidence of the provision of unnecessary medical or chiropractic care that is that e r four eight three six on the issue of assembly line medical care judge seamers ruled there is no evidence to support this conclusion that city are four eight three one on the issue of quotas and pressure on the doctors he again found that there was no evidence that of any violation of law that's an e r for eight three four and judge seamers concluded that what state fund had come up with was quote a hodgepodge of testimony close quote from some quote disgruntled employees and that none of it none of the  testimony from those disgruntled employees rose to the level of any violation of law they had lost on every single issue going to the question whether they were going to have to pay the tax defendants the handful of issues that remained only went to the  quantum of damages they went to whether certain types of treatments were my official release or were were massage whether certain types of treatments were work conditions or group exercise which have different billing codes and different billing rates so they had lost on everything that really mattered the only question was how much they were going to lose and under the the zacks defendants analysis of the claims they fund faced twenty one million in liability plus statutory including statutory interest but not including attorney's fees and some of the other penalties that they could have been subjected to they did not want to go back to judge seamers for a reason and what they seek to do here is fundamentally unfair they have no litigated with the zacks defendants for fifteen years they systematically refused to pay the zacks defendants bills putting them all out of business by two thousand and five they then put them through the wringer in fighting every single claim tooth and nail in the worker's compensation appeal board until they lost lost lost the judge seamers the zacks offense incurred millions of dollars in  cases and prevailed right down the line then judge mr ruff settled and they investigated for six months they brought in the law firm of sunshine national road and rosenthal now denton's they interviewed months of investigating the issue and not only investigating but for six months they had their claims department scrutinized the claims and value them and they performed they created detailed sheets figuring out what they owed it finally dawned on them that the  struck was a good deal that they had settled for less than fifty cents on the dollar after losing on liability in the arbitration by the way the site for the murphy declaration is five zero one three so going out to dismiss questions were in april of two thousand and ten they decided to settle again they settled with their eyes light open as as the court has pointed out they had made criminal referrals of those acts defendants which had resulted in some indictments all of which were dismissed by the desk by the superior court all of them dismissed they had pursued their own investigations they had fought in the workers compensation appeal board they knew everything about the underlying l that they know now that you can use they of course say there was an extra in sick evidence can you give us any clue as to what that might feed published what they knew what they had investigated what was the alleged  no alleged extrinsic evidence none whatsoever the underlying billing fraud all related to events that occurred in the early two thousand which had been fully developed in the arbitration they were in possession of all that information not just bruce roth but other folks at skift because he had other lawyers working on the case he reported on the case he actually met and presented on the case to the board of directors of state fun on a monthly basis about the case as to the conduct with bruce roth in two thousand and nine they knew all about that the minute they learned about the settlement the original settlement they relieved him of all duties and they put him through the wringer trying to figure out what happened they pulled his litigation files out of his office they went through his e mails they went through his telephone records they bought  who was one of the people that interviewed him said that he suspected either that mr roth had had a sense of panic or that he didn't gauged in corruption was the word he used so they were on full notice and when and ten settlement agreement it's interesting doctors actions as defendants didn't didn't warrant represent that there never was anything fraudulent they represented wanted that there was no fraud in connection releases take care of this x defendants but there's there's the overarching issue that judge carney addressed first in his summary judgment decision which is that there simply was insufficient evidence for reasonable jury to find any sort of collusion between the zacks defendants mr roth and for the condescends and that negates the claims against all of the defendants here the keep in mind there was three years of very invasive discovery what's important he should be doing that is a valuation whether there was enough evidence that shouldn't happen i suppose your answer would be well a judge can always override the jury because if there's not enough evidence one of evidence are you saying he kind of did it and vance no your honor i think he properly performed his gate keeping role in determining whether to allow the case to go to a jury it was not for judge harding to weigh the evidence or decide or to decide who is right or who was wrong and he did not do that keep in mind judge cornish we dismissed the case on the basis of the releases they then pleaded around that and he allowed them in light of the gravity of their allegations he allowed them to take incredibly burdensome discovery they issued state funded shoot one hundred thirty seven third party subpoenas they obtained the bank records of all defendants all of their banks and financial institutions they got their phone records they got their payroll services information and they found no evidence of any communications between doctors x and bruce roth at worst you know there were no secret e mails no secret spend six million dollars in the district court just to get through discovery judge carney correctly determined that enough was enough he had given them plenty of latitude to pursue their claims and they had come up with nothing and he properly exercise evidence there wasn't enough for a reasonable jury to find collusion and that is an unremarkable conclusion a very conscientious decision by a very able and thoughtful district judge and they've come up with nothing to undermine that conclusion the deeper you look at this evidence the more clear it is that none of the state funds allegations make any sense it made no sense for for mr roth to give up a twenty year career where he was a leading figure in fighting fraud for want to get a job at a little glendale company for less money after being displaced it made no sense that a guy that owned that business mr salahi and would would jump into a rico conspiracy to get him a job again none of this made any sense and there was no evidence to support it did judge carney expressed any concern about the extreme nature of what had occurred here in other words what state and had done in this situation you could go back and judge carney and try to get your fees for this appeal we understand that under the applicable law we may either bring that motion to this court or to judge carn i think we've largely covered the important issues the one other thing on that that i'd like to note is they they argue that mr roth so without authority mr off was a twenty year veteran he was the most senior lawyer in the special litigation unit this litigation was his baby they have cited no evidence that mr roth was ever provided any written instructions were guarding his settlement authority and what he stated consistently afterward was that he felt he had the authority there obviously were some turf wars going on and some people didn't like what he did but he felt that he had the authority and that he was doing what was in state funds best interests all that matters for you is that he appeared to have the authority that isn't precisely her and he sent us an e mail on the you don't need to weigh in on whether he really had th just need that they would need to have evidence that we knew he liked her and there's no evidence in the record that this x defendants had any idea that he might like authority in fact his e mail said that he had obtained authority to settle on and they've write an outline of settlement terms in his e mail of october two thousand which was the framework for the final settlement when they met on october ninth they put his e mail on a screen and that was the the framework for the negotiations wasn't there something  him maybe misremembering that he suggested that well he didn't have authority to settle globally so it would have to be done on an individual claim by claim basis  correct that in late august of two thousand and nine he had made some comment to mr sloan that he was having management authority issues because of the claims being in the millions and mr silverman responded in email in september one and said well what if we go through the claims and a proceed with the following that's all those acts defendants know what's interesting also is the very day after the settle the very first business day after the original settlement memorandum was executed so back in october of two  nine they had a meeting on a friday they agreed to settle the very following monday two attorneys for the zacks defendants call their counterparts at state fund to start implementing the settlement one of them  referenced in the papers it is the call from patrick christophe to a guy named bob wilson who is in charge of ambulatory surgery centers and the comprehensive claims he calls him and says hey we have a deal let's get it done at the same time or the same day prepared based on their investigation which references both documents both of those calls so if there if if this this this claim six months claimed depends on you believing a reasonable jury believing that the zacks defendants were so cunning and so careful that they were able to engage in a secret conspiracy with mr ruff without creating a shred of evidence not a single record not literally everything was hidden but at the same time they were so stupid that the day after they got the deal done they started calling state fund and telling about a case that says that i wouldn't be able to do so just now i would also note that they have played rather past and loose with the facts as they present them that in fact mr so verman had known another attorney was handling these matters therefore it was their obligation to bring that attorney in to the matter another wise otherwise they were concealing this from them but all these are questions of fact your honor the legal sta civil cases where preponderance of the evidence is the standard burden of proof the question is whether reasonable juries could bring a verdict for plantar and i would submit that there is