thank you your honor good morning i'm rick gas and i represent the plaintiff sentry surety although i could list for you ten errors in the handling of this particular motion in the district court the bottom line on this appeal really comes down to three points and then the th point being what the defendants are asking you to do number one the wrong standard was applied to this what is called a special motion to dismiss under an anti slapp statute of the state of nevada and the defendant anti slapp statute which is then nominated then interloper statute interfering with the federal rules of civil procedure which should have been followed this case and thirdly the dismissal occurred without the normal and customary option of the plaintiff being allowed to amend to meet the errors in the district court's decision and on those three bottom line items today you're being asked to complete this tainted process with a request by the defendants for you to act not as a quarter of review but as a court of st view they are submitting to you that you can take what's in this record without any discovery granted to the plaintiff and me a factual determination and determinations of law where i would like to start it with the four concessions that the defendants have made the st one is only to demonstrate for you how we roni yes this district court opinion was and that is that on the rico claim the district judge apply the federal rico element of pattern and did not apply the actual state rico statute that's how iranians say it was but now back to the st three concessions that relate to the iranian us standard of care that standard that was applied to evaluate the motion to dismiss the judge apply a standard of clear and convincing imposing that on as the non moving parties burton in the case and going so far as to say sentry had not sufficiently disputed prince's assertions to show that the defendant to be used the privilege to petition the court by publishing the communication with malice in fact so he imposed on a party opposing a motion to dismiss a requirement of evidence out of clear and convincing and inserted malice as one of those elements it is in none of the anti slapp cases the nd concession that was made by the defendants is that the district court was required to treat the anti app statute but then didn't apply the two step process in the two thousand and fifteen amendment the judge then you lose the two thousand and thirteen amendment which of course had been bypassed superimposed by the two thousand and fifteen but he didn't know all about the decision two weeks before his decision by the bought a supreme court that says neither of those statutes could have been record active and thoughtless the standard that should have been applied to this motion was proceeding the rd concession meet by the defense is that all that is necessary to defeat a motion of this nature is evidence for a reasonable jury juror are drawing all inferences in favor of sentry and that they would find  the answer to that question comes from right from judge cord who is handling the bad faith the action that has grown out of this orch rated default judgment judge gordon in the federal district court in las vegas deny the defense the and sixty eight judge gordon wrote genuinely issues of material fact remain regarding whether the settlement agreement was the product of fraud and collusion just what we sue for in this case and concluded that a reasonable jury could find the settlement agreement and default judgment were the product of fraud and collusion quotes viewing the facts in the light find that the settlement agreement set the stage for printers consul to obtain a default judgment that manufactured coverage even the whole there was no evidence supporting coverage under the sentry policy continuing in quotes viewing the totality of the circumstances in the light most favorable to century a reasonable jury could find the settlement agreement and resulting deep  judgment were the product of fraud or collusion designed to manufacture coverage where none exists that under the sentry policy and of course so we have the answer based on the concession of the defendants in this case that if a a proper procedure had been followed and we had gone through summary judgment and not this special motion to dismiss there is the requisite jury determination that needs to be made there is the requisite everett entry base for a jury to raise the one million infer fraud and collusion which we sue for independently in this this case is a situation where the primary or the personal insurance carrier progressive on mr vas of an attorney for the personal car coverage working to pay money for personal coverage but working to try and orchestrate pay money under a personal policy that couldn't cover business operations and then get into bed with the plaintiff's attorney to create a fraudulent default judgment for eighteen million dollars that even included six million dollars of attorney's fees given the wrongful standards applied by the district court this case has to go back for proper proceedings under the federal rules of civil procedure in summary judgment thank you thank you c slap relief it survives it in over you and that's what the court supposed to do is take the entire record it conducted to novo review the two thousand and fifteen decision in saugor two dozen sixteen decision saugor basically held that the pre two thousand and thirteen version of the slap statute applied and what the court should do is look at whether there's a good faith communication made in furtherance of the right to petition and then the burden shifts to the nonmoving party to establish a genuine issue of material fact so if we apply that analysis let's look at what mr prince did and what it was they claim was not a proper statement or not a good face statement within the statute what they attack is an allegation that he made in the state court complaint that mr vast was was in the course and scope of work for blue streak now century disagrees with that because they did their own investigation before the lawsuit was filed and they they interviewed mr vasco as they had their investigator go over but they prove zero to the investigator with questions leading questions where they wanted mr vast quest to say into a tape recorder that he was doing personal stuff he wasn't doing anything related to work here's the problem with that the police report which was contemporaneous the statement he made was that he had just gotten off work the bluestreak business was a virtual business he ran it basically off a website and a phone it was the same phone number that he had as of his personal phone number and there was evidence and there's evidence in centuries claim notes which indicates that there was a witness who may have seen vazquez working or or coming out of a car wash shortly before the accident occurred in under the southwest gas case in the vat of which yes because there's an evidentiary basis for the allegation and that's all that's required by rule of it so he comply with rule eleven now this is where this case just really goes off the rails he sends a copy of the complaint to century they say we're not going to cover he sends them to default they respond based the same day we're not going to cover the absolutely breached their duty to defend so that evolved judgments taken they try and get back into the case by filing a motion to set aside a motion to intervene which i turned in in the state court here in jackson he points out you put your head in the sand you're not coming in now you had the opportunity and you blew it so then the bad faith case file in this is where the the empty slap fails or the empty slap argument is is the best for us they cannot possibly come forward with any evidence to defeat the arguments the st one was that mr prince the statements the ones that they're attacking in this complaint are legally privileged nevada has a broad would have been needed by century in order to respond to stats imitation is arguments they would have had in their file because the focus is on what it is they knew and when they knew it so there wasn't a need for discovery one of the arguments of counsel made was that there was limited discovery allowed we filed a motion to challenge the the need for discovery in the case and judge when conducted a pretty extensive argument as a part of the record it's about twenty pages but she goes through and she points out that century was able to respond to the motion to dismiss without filing a five thousand and sixty affidavit without specifically identifying questions of fact that would somehow changed these legal issues that were before the court in response to the motion to stay century cited heavily gordon i think he was referring to a two thousand and thirteen opinion and that opinion invited century to come forward with evidence of fraud he said bring forth your forger evidence of fraud in two thousand and fifteen century requested more time to do discovery on the fraud and judge gordon tonight it's if you had be fed enough time already so what they do is they filed this this in essence through a lawsuit out of a two thousand and nine accident one  point your honour's the idea that an opposing party is going to be sued because of allegations they make on behalf of a client it's totally opposite to what our adversarial system requires and what centuries trying to do is create a new avenue for where an insurer commits bad faith they can now go after the attorney the opposing attorney and say you know what you set this up somehow and i think that if this case goes back if it's reversed that's what we're going to see is this new argument if an attorney can be held liable mr prince could be held liable for statements or actions that he's taken in the course of represent our client it just opens the door for attorneys to be sued and we're going to be constantly looking over our shoulders to decide whether we want to be sued or make an allegation on behalf of a client and it was a court of questions i don't believe that we do thank you thank you honors my name is riley clayton and i represent the attorney george for now in this case he's also sued as a defendant he's a co appling in this case given the limited amount of time i want to focus my argument on certain are the these are the undisputed facts before george finale was ever involved in this case progressive and dennis prince had reached an agreement for the settlement that's an undisputed fact ever involved beach before george when i was ever involved prince had obtained default against the driver before george when ellie was ever involved in this case from progressive saying hey we've reached an agreement going to represent the insured mr vasquez on executing the covenants assigning the rights and protecting his interests if you have any changes make some changes the only change that mr anally did in this particular case undisputed was saying hey if you're going to have a judgment against my client don't record it that's the extent of his involvement those are the undisputed facts says m here's the other critical controlling dispositive fact all of this conduct can took place within the const text of anticipated litigation or litigation itself thereby lending the defense of the absolute litigation privilege to the conduct this taking place here that's why the claims fail the other undisputed fact and it's interesting because if century wants to live by judge gordon's ruling the converse is true that ruling from judge cordon was that century breached its duty to defen both the recall claim and the conspiracy claim include a causation element did this wrongful conduct cause any damage it can cause damage when all of this is  ted when all of this is never takes place and we are not here in this situation today if century steps in those what it's obligated to do defend its insured if you wanted to contest the sufficiency of course and scope step in and defend because judge gordon has held and now it's a confirmed fact the century breached its duty to defend so why are we here on summary judgment or any particular standard you the court wants to evaluate this under there is no causation there is no causation because centuries that fall by not defending and the absolute litigation privilege protects any conduct know we're wrongful the final point i want to make is this is not wrongful you look at the sampson case you look at the same case in andrew where judge gordon says when attorneys are and litigants are situated or postured in a situation where the insurance company refuses to defend they get to take their own steps to protect themselves by enter into agreements i see the my time is up i appreciate the opportunity argue this point and we