undeniable material factual errors in the summary judgment decision itself and what i'm going to talk about are mistakes about the timeline about sorrows actions and mistakes about the structure of the scheme account in particular let's start with a timeline on page fifteen of the summary judgment decision the district court determined that the evidence of a particular meeting in april or may of two thousand and eight simply meant that mr sorell should have inquired further into the legitimacy of the already formed account number seventeen zero five seventeen zero five was the central fraud account of the scheme held investor funds that revealed a mistake in the timeline because seventeen o five hadn't been formed yet and in the april and may two thousand and eight meeting what mr sorrels learned was that the main investment destination or the main investment vehicle of the entire marketing program was insolvent he learned that there is at least a thirteen million dollar shortfall he also learned that the accounts were not segregated now that's important and material because segregation along with no risk to the investors along with liquidity for the investors along with greater than ten percent returns double digit returns those were the proper ways that these entities would have exercised or would have performed for managing and holding these accounts so in april may two thousand and eight before forming seventeen o five starr learned that none of the four pillars of how these funds were supposed to be handled were being respected by these individuals then it was a month later unlike the district court's misimpression it was a month later that the account was formed with what we're counting so far as three explicit false statements on the account opening papers to implicit ones when i can of course go into those in there in our briefing what those papers had when they were formed was the most bland expression of a new business account that you could possibly have b and it certainly didn't reflect the formation of an investment account which as our expert testified that an investment account or  manager account would have been subject to doesn't nation as the quote unquote highest risk under the bank's security act the second mistake in the summary judgment decision mistake of fact is clear is that on page eleven of that decision the district court believed the sorrels had no role in preparing and said count opening papers that is completely contradicted by the fact that miss s b testified that she was directed by mr sorrels the testimony also shows that she her job was to support mr sorrels she was directed by him to actually choose the checking money market designation without any designation anywhere else in the account opening the tiriel that this was an decided these issues that with your is that where it you're is a good question but it's more in line with showing that the district court simply didn't understand what was going on in the record itself and therefore made  formed a misimpression that there would not be reasonable inferences of knowledge and substantial assistance high i'll get to that if time permits of course i'll go through just a litany of other underlying facts that to the district courts credit recognized existed in the record but should have permitted the formation of reasonable inferences of knowledge and substantial assistance but returning back one final error or run a real quickly the structure of the scheme accounts so on page thirteen of the district court's decision the district court was under the misimpression that it was cook the ringleader himself who delivered or handed the seventy five account opening papers to begin that process in fact it was these are these are just fundamental errors in the district court's decision why does it matter of course you know this court will review judgments not opinions we respect that of course it matters because in sorrels as head he had been exposed to the inconsistency between the four pillars of how these accounts were supposed to be managed and how they were in fact managed and what did he do he deep in the banks relationship a month later with th failure to sort of catch them red flags that were flying around in the air that that itself shows that that itself shows that summary judgment should be should be reversed so it's enough as i said to show the pure conceded factual errors in the district or summary judgment decision but but of course as i as i was hinting at there's a wealth of additional evidence in the record that was mistreated and should have been treated as giving rise to reasonable inf knowledge and substantial assistance and it's not speculation to draw these inferences and call them reasonable as my my colleague will probably stand up here and say especially in view of the legal backdrop for this type of a claim and that legal backdrop says that state of mind is provable by circumstantial evidence and this partnership a typical conduct lacking business justification demonstrates knowledge of the actor for all right i understand the question the answer is we believe we meet both threshold is actual knowledge which is more difficult for us and constructive knowledge which is less difficult for us i f illegality or clear tortious innocence and a close or long term relationship but what's helpful for us in the construct of knowledge is that the minnesota supreme court used an exemplar case to tell us or teach us all what they meant by that and we have that in our briefings the died a case where it was a far more attenuated relationship which gave rise to constructive knowledge liability so i'll also point out that under even under if one viewed that as a high test somehow higher than actual knowledge or circumstantial evidence of actual knowledge we have that at evidence even at the highest threshold that one one might need to apply at least in terms of passing the summary judgment barrier and demonstrating that giving giving reasonable inferences to the receivership we get to trial and in particular we have we've briefed that link the intent socialising between us and  we're we've described them as professionally questionable ways not so much to demonstrate any any moral judgment on what was going on rather to demonstrate the closeness of the relationship that itself is a factor and of the which meant standards the nature of the relationship improving of actual knowledge and substantial assistance and likewise the closeness of these attendance at cocktail parties and sporting events and other things the closeness of the relationship between those parties demonstrate the lack of credibility of the target of this inquiry today the lack of credibility of mr sorrels from two thousand and ten when he testified under oath that he had quote unquote limited contact with these various entities  so i should not leave the podium to surrender to my to my brother before i mention that qantas partnership this is a great case for us and it's stating the legal standard because it also states that a pattern of otherwise ordinary that there might need a material fact issue solver that was the problem with this case in the district court remains the problem with the case on appeal the receiver is seeking to hold associated being liable for one hundred sixty million dollar based soley on the alleged knowledge of one employee and the bank's provision of checking accounts for about eighteen months the receiver virtually concedes that he has no direct evidence to support his claims but he says he relies on circumstantial evidence and what he dubs inference together but it's not just that the receiver relies on inference you completely understand it on summary judgment and reasonable inferences well based inferences in the light most favorable to moving party the problem is that the receiver relies on inferences that are not well based on the facts and as all discuss in a moment often stacks inferences on top of one another case of fact says i'm going to draw inference from that and based on that inference i'm going to draw another inference and another inference from which you could then infer actual knowledge that is too hard a stretch and that's exactly what the district court held in this case it was correct and we have t looking touch first in the knowledge standard for it in defending liabilities and so i guess it's not completely clear that my my colleague is agreeing that it's natural now that standard we think it's pretty clear that it is from whitman it's in the reason i say it's pretty clear is because that's how the supreme court in minnesota in which men described its main conclusion in the case from ph one eighty eight and i'm quoting under the alleged facts we cannot infer that elena flom had actual knowledge that will she was coming and that's how the minnesota supreme court stated its conclusion it obviously spoke in terms of actual knowledge use those words the other reason we know that it's actual knowledge is the court adopted section eight seventy six of the statement and the vast majority of courts that have adopt section eight seventy six who calls an actual knowledge standard and we've also pointed out to the court that the minnesota court of appeals understands which meant to be an actual knowledge standard in and and legit allegation of aiding and abetting against a bank that's the henderson decision cited in our materials now which mn does discuss constructive knowledge but only to observe that and i quote some courts unquote have adopted it in certain circumstances judge kelly recognized the court primarily discussed and relied on a case that that my colleague referred to a second circuit case called dood well that's a case that arises in the us a context it's a case that's a second itself has abandoned and that other courts have held does not apply to common law aiding and abetting claims like we have here in which men ended up just concluding it's about a one paragraph discussion of constructive knowledge said well even if constructive knowledge appl the plane if there had been adequately plenty but right after that discussion which meant speed its conclusion that it couldn't come for actual knowledge right after discussing that so which meant certainly never adopts a constructive knowledge test it just discusses it as an alternative holding basically and we think it's pretty evident that that's an actual knowledge standard that the receivers held so let me move to discussing why the district court was right to say that there was insufficient evidence that associated bank had actual knowledge of wrongdoing by an invalid in prince but the opening of the account as as your honor just mentioned the crown for its account in june two thousand and eight the receiver says sorry lied on the account he says that he had a certificate from the secretary of state x and did the receiver gives no citation in the brief for that claim and that's because it's not with the form since the form says it refers to quote a report from a state registration website it's undisputed that formed that choice of language was driven by ms s p who filled out the form she testified that she chose the words that she thought best match what she saw in the documents that she was given to open the account she said she made that choice from a drop down menu a variety of choices and she said it was the closest match so we need a lot of inference is here to get from there to saying that sorrows knew about fraud first you got to say well we start with the fact we know that the reform said report from state website from that you have to infer that somebody lied about that because they didn't have a certificate then you have to infer that it was sorrels who lied then you have to infer that he was lying to cover up the fact that he didn't really have a secretary of state certificate and then you have to infer that he did that because he's trying to cover up fraud that he knew about it's just too many links in the chain to do that and that's what a lot of most of their inferences are like here the district court went through them and i think did a very nice summary of demonstrating why all of them are just too remote from the the factual foundation that the receiver is relying on it's just too many jumps to get there and there's no doubt that you can use inference as you can and especially in a case that relies on intent although we're not talking about intent here we're talking about actual knowledge but you can use inferences but they've got to be well based on facts and the district court was saying that all of this was just too much a stretch time after time and we hate to suggest it with the with the record first of all they submitted a sixty six hundred page appendix i printed out all of the citations that either party made its it's a couple hundred pages so that we didn't need six thousand pages of appendix to get to what the guts of the case are but if you go through those and examined the receiver citation to record evidence it shows that in most cases there's just not a tie there's a small nugget of facts that the receiver then applies inferences to inferences to and basically argues to the court i get to tell whatever story i want based on the facts and we're going to call it an inference and that's just not accurate and that's what bothered the district judge about this case is that all of this was you know basically stories that were based very loosely on a kernel of a fact and then took that fact and blew it completely to an illogical conclusion or at least one not supported by the facts and this court has said you can't inference on inference to avoid summary judgment and we've got that in two ways we've got piling of inference on inference in two ways one is just by the sheer number of inferences which is basically what the receiver is relying on and like i said i can't go through all of them in fifteen minutes but here's an example and it's one that counsel just mentioned it's a fact that sorrow is was present when the people running this scheme were quoting movie lines to each other and that they caroused right and they say that the movie lines were from movies th glorify greed and there's no doubt that sorrows was present when that happened but to infer from that that charles knew that they were conducting a ponzi scheme is a bridge too far as we pointed out in the brief i have friends who like quoting lines from the got father and i'm reasonably comfortable they're not mobsters all right you just can't that's too tall an assumption to make of the facts no that's just a one sort of a one step inference the second reason we have piling of inference on inference is the reason i just mentioned it's taking an inference and then using that to reach a different inference in another inference and in other words it's almost like double hearsay hearsay with hearsay you just can't do that and i've just described one way in which that happened the june two thousand and eight crown forex  account one way that we inferred that based on the description of the account but they use that account opening for a lot of reasons that demonstrate a lot of arguments that demonstrate how their stringing together these inferences for example they point out that the form for the opening lists an address on nicollet at it and that's undisputed fact it absolutely does and you can find that page before the appendix that's the address that was undisputedly given to us to put on the account so the receiver then says well look sorrow's visited highly in smith the signatories and the account in burnsville minnesota so he had to know the nickel address was a sham well no businesses often have more than one address these businesses big picture is something that a court can do but by the same token that evidence the evidence that is stitching together that story the pieces actually have to be well based they can't be speculative yet no matter how many there are they can't be conjecture they can't be speculative but at the end of the day the question is whether these facts rely on a sound or whether these inferences rely on a sound factual basis in the district court just said they're not they're all reaches the fact that you reach too far twenty nine times doesn't mean that you can get to a jury because well you've come up with enough reaches now that you've painted a picture of an overall story a fraud yet you can paint the overall picture of fraud but if it's based on invalid  unbiased based on facts it doesn't count even if you've got the whole picture in mind do you have can you give us a reference to the record where we could find a description of what was he he was an account manager he was responsible for trying to go out and generate business through corporations that would open up checking and savings accounts at associated bank that was pretty much the core of his job and that's exactly what these accounts were they were checking accounts and we've heard a lot about how they were never designated as fiduciary accounts or the like ms s p testified that wasn't possible get two choices when you designated the type of account it was checking or savings and she doesn't need to check it so  but that's basically what what mr sorrels was responsible for doing he wasn't responsible for loans or anything like that and it's undisputed that the bank never did the kinds of things that you would expect to see in a typical eating in a betting case right never financed this operation ever made loans to the operation and never tried to recruit investors to this operation s o c the bank didn't try to sell its customers on the investment such that you could say yeah they materially this substantially assisted the conduct of the scheme which is what the substantial assistance probably means and i'll get to in a second there's just none of that kind of evidence all that associated bank ever did was just allow the corporations to maintain accounts and that's really the the guts of what mr sorrels was selling was just services just account services for the bank and nothing but nothing beyond that the other point i wanted to mention and i'm certainly i don't have the time to go through and explain why all the facts i just i i know you hear that from counsel probably all the time i just urge the court to take a look at the record the more specifically imagine that the court's clerks do this all and that to take a look at the record and really compare the statements against what is in the record because a lot of the times they don't match up right i think unnecessarily b all it is as i said it's about sixty six hundred pages of exhibits and when i printer of my material when i printed out i had somebody print out each page that both sides referred to and it's just sitting in one folder over there it's about that thick so if a court wish i'm sure the parties could come up with sort of the condensed version i think the issue here is that if the appellant was citing one page of a deposition they put the whole deposition in the record even if it was two hundred pages long so you end up with this sort of bloated appendix that that that is an unnecessary  but but yeah it's when you get right down to it it's a couple hundred pages of stuff i wanted to just respond one last thing before saddam and that was this allegation that mr sorrels knew that all of the these schemes  the way that they did business and that for access a was insolvent there is no evidence of that that is another invalid speculation there basis for that is testimony of a gentleman named patton gill who was one of the schemers that s pages twenty to twenty four twenty two twenty four twenty six of the appendix it all comes from there mr pettengill said there was one topic of discussion at the beating you're referring to and it was the need to create segregated investor accounts as counsel had advised them to do that's what the topic of discussion was he said there wasn't discussion of insolvency of crown for ex or monkey business that sorrow's was around for and he was very unable to tie startles to any of this thank you a thank you your honors let me very quickly address we asked the court for permission to submit a condensed appendix we asked the clerk's office and i understand there are some checking behind the scenes and we were the answer no we would have loved to we would have saved tens of thousands of dollars but perhaps we should join the judicial conference advisory committee and help with the court on that but let me go back to the argument i didn't hear anything from mr weber justifying the three just complete factual material factual errors in the summary judgment decision at pages eleven thirteen and fifteen i just didn't now what i did what i think i did just here is that mr weber went through a number of facts that he and gave his viewpoint of what the  inferences are drawn from that from those facts but we're here on summary judgment we're here on de novo review of a summary judgment decision and of course everyone here knows the into the reasonable inferences are drawn in favor of the non movement not to move it so let me go to the last substantive point that that my colleague just said i strongly disagree with his statement of what the record shows for mr patten deals testimony at twenty four twenty two through twenty four twenty six mr  just what he said at his declaration sworn declaration at twenty six eighty six that in front of sorrows they discussed the insolvency of crown for x s a the swiss vehicle for all of this investor discussed the insolvency they discussed the non segregated of the accounts and within the page range they also mr pengo also confirmed that whatever aspect of it was prompted by a lawyer saying hey you need to get together and figure some things out mr sorrels was not privy to any notion that a lawyer had triggered the need for that that meeting that meeting april may two thousand and eight puts into sorrow's head that the proper dominion and control of the investor funds is these four pillars i talked about segregated funds no risk investment liquidity of investment and double digit returns also simultaneously sorrels head that those aspirations were not being met by these folks that is knowledge of conversion and what did he do he assisted he aggregate augmented the conversion by creating these account opening documents and assisting in them remember he hand the livered to them to sign and then he received them and deliver them back to the bank he endorsed the falsehoods as his own regardless of whether miss s p had any role to play about miss s p another piece of inaccuracy that i just have to correct for the record s p supported mr sauls that's at fifty six seventy two to seventy three sorrows directed miss to create the information on the account opening forms fifty six eighty eight and finally as far as the labeling of account zero it can only be checking or can only be savings that's not what the testimony shows at twenty nineteen the testimony shows that at a first level at the highest level the choices are only dva money market savings and time deposit loan account those are the high level choices our expert  ery has demonstrated at fifty four ninety three ninety one and fifty four ninety eight that there is a duty and an obligation on the part of the bank under the bank secrecy in act an anti money laundering act and that and various other know your customer type acts an obligation on the part of the bank to include in the account opening materials and include in the a file what the use of the funds were going to be so they could know whether or not the funds were being used by money managers slash financial advisors who are the quote unquote highest risk under the regulatory guidance from the department of the treasury so they could have put investor funds in the account over the papers and let's not forget what was the direction the lean pardon the pun of the five various factual errors put in the account opening papers it was in a direction to make this account look extraordinarily bland one of the most uninteresting accounts you'll ever find a new l l c just opened a checking money market account it was not saying that it's a high risk investor fund account so that the highest ranking security officer needs to step in immediately and know what was going on so sorry was smart he was sophisticated he was trained to know your customer he knew this customer it's his biggest one by far as a relationship manager and just one more record citation his training and know your customer