please a court mr chief judge judge rosen bomb and judge to be no i will try to be sure than the seven minutes in the inquest for oral argument we indicated that everything had been breaking briefs and we sing we thought there should be oral argument was what we viewed as being rebuttal chief judge moore basically ruled that an order to have been entered by now retired judge allen gold which had expired and which had been requested to be renewed in which judge gold had refused to be renewed and was used by counsel for the other side to go into a court both in the grand caymans and also in the dominican republic and seek both injunctive relief and permanent injunctive relief was a proper since there was a lawsuit involved and that was a proper application of the litigation privilege and that litigation privilege barred our being able to sue  various claims we had there is no basis this of course is a diversity case there is no basis in florida law for such a ruling and there is no other basis for it at all and that is the reason why we cited the cases on the point the suggest indeed from any fall of the cold war that excludes foreign judicial proceedings from the definition of judicial proceedings no sir now that i'm aware what washington we saw conclusion and your position you're not telling us what oh i'm sorry because particular mother is the timing the fact of the matter is that the order had expired and these cases had nothing to do with what was going on in miami and in addition to that well that is that after the question was whether the litigation privilege applied if it applies by its own terms to a foreign proceeding not whether the litigation proceeding the president should of should apply in this case assuming this we didn't have the complication of a foreign proceeding i apologize i thought i answered judge dubin and said that i did not know any reason just saying i misunderstood the argument breaks i'm sorry go ahead so did i let me ask you something because i actually did have some concerns about applying the litigation privilege in foreign proceedings it seems to me like from am and wolf that the concerns that the florida courts had and the reasons why it allowed the litigation privilege to be used in certain areas but qualified and others was  they were concerned about making sure that the proceedings would you know be full due process have there be adversarial type proceedings that the that the lawyers would be under their control and subject to the control of the court saying that there were adequate substitute for the abuse of process cause of action because the court could sanction the attorneys or take other kinds of active action and my concern is that in foreign jurisdictions that's not always the case and so i wonder first of all whether that's something we need to be concerned about because it seems to me like that drives the analysis that the florida courts have and second of all if it is something we need to be concerned about then do we have to consider it on a case by case basis that is well this case is in the turks and caicos so we have to look at whether the turks and caicos judicial system has sufficient guarantees and whether the turks and caicos judicial system adequately controls the lawyers who appear before it but this other cases before the dominican republic so now we have to consider the dominican republic particular legal system or do we just have some kind of blanket rule that was the question i answer the statement that you just made the question was a obviously makes a great deal of sense but more importantly even if it was not in a foreign jurisdiction the fact it's in a four interest to should is even more outrageous that lawyers go into a foreign jurisdiction and hold up an order that has expired and claim that that order prevented action from going forward in that court and in effect have the end effect of destroying one hundred sixty million dollars worth of equity which is referred to by th saw we're trying to get a view to state your position on whether or not florida's litigation privilege applies to proceedings in foreign court and you keep want to talk about how righteous it would be to apply the litigation privilege if it other what it says for a domestic or for example if you don't want to answer the question just tell us that and we'll leave you alone and do the best we can with it but you haven't yet addressed whether or not the florida law litigation privilege should apply when the proceedings complained about the matters complained about of curve than from occurred during our arose from a foreign litigation judge there is no cases that have addressed that issue which i thought i answered if you are asking whether or not there are policy reasons why that should be adopted as a rule in florida i would suggest it is for exactly the reasons raise enjoys roosevelts question because none of those protections are there but even if it was a florida case that we were talking about the litigation privilege would not apply as the florida cases indicate with respect to the application of the litigation privilege in foreign jurisdictions the way the analysis starts in my mind and from my reading of the cases is that you determine whether it is a judicial proceeding so that if there is a judicial proceeding action is taken in that judicial proceeding and it's related to that judicial proceeding a policies that been expressed by the florida supreme court repeatedly say that to protect the ability to speak for some reason the dominican republic and or the turks and caicos proceedings were not judicial proceedings in fact they conceded that they were judicial proceedings so to to and i don't think they've argued in their briefs i don't think they're arguing here today that that that those courts were not traditional proceedings now i don't know if you want to dwell on it but the fact of the matter is with respect to the turks and  down there that should be a tribute recognized here in united states and in florida and in this case i think is a good example even though they didn't raise this issue in the turks and caicos that court dissolved the injunction once that court learned that that the gold injunction had expired in for various other reasons which are in the record so that actually comes to the second half of my question which is if we and i appreciate your  emphasis on this being a judicial proceeding yes but the case law in florida and we're what we're trying to do is figure out how florida law decides that right we're not we're not looking at we're not deciding this based on our own policy views we're looking at what florida has considered and it seems to me that florida has said that you know an administrative proceeding is like a judicial proceeding and it has the same protections there are the attorneys are subject to version of the litigation privilege so might so it seems to me that it's not so much a focus on whether it's a judicial proceeding or not a judicial proceeding but whether it has the protections that we that the state of florida is valuing in a judicial proceeding yes and so if one of the things that we're looking at is you know is this an adversarial process where there are the types of protections that cetera do we need to do that on a country by country basis and it just depends on where the litigation is raised or do we just say you know what that's going to require an awful lot of work on the part of the courts to learn foreign law for and process for all these different countries so instead we're just going to say it doesn't apply and i wonder what your take is on i understand that it could be a lot of work to go in a country by country basis i think though that the burden must be if that's what's going to happen in the i would think that the the courts of florida which are concerned with protecting a litigant rights and making sure and pointing out that there are remedies in the event that litigants misbehave in those remedies include fifty seven one five motion contempt controlled by the court that's what i think the courts would look at is in these other jurisdictions is that is that happening would that happen and in this case it did but do you have to so so how do you demonstrate that you demonstrate that i looking at what actually happened and then in the case do you have to have an expert come in and explain how the process works what if there's a debate over how much protection there is how do we h what if you go down that road that it would be like any other case in which you're trying to where the foreign law is going to apply in the proceeding you have an expert come in and testify as to what the foreign law is and you probably have an opposing expert saying this is what the posing of this is what the foreign law is not and if you were going on a case by case analysis if a defendant which didn't happen here if a defendant raise the issue of this is not a real court you should not respect this court just like you i guess would be the same analysis as if should we respect the judgment of a foreign court and courts will look at you know what happened in that foreign court it should be the burden i would believe and i think the court would find stream core of florida if it was asked who would find that  it would be the defendant's burden to show that this was not a judicial proceeding that there were not the protections and for that reason we should not protect what have the litigants from what happened down let me ask you this mr kellogg and i want to be careful you answer  and jurisdiction aspect of the litigation privilege was at issue here but did the plaintiff argue in the district court that the litigation privilege did not apply in this case because it was a foreign litigation as opposed to a domestic litigation out of which this dispute arose my understanding and the the argument changed over time and the the  argument that was at vance i believe that the rule eleven hearing before the magistrate on sanctions on mr klock was that any foreign court whether it be across borders or across state lines the litigation privilege does not apply so he was not saying because this is a foreign court without any due process now not that i'm asking you whether he applies he doesn't didn't sound to me to like this morning he is arguing that the litigation privilege doesn't apply because it arose out of foreign litigation but you're telling me he did raise that issue in the district court he did raise the issue that unless in fact he said he argued that only judge gold is the only court in which the litigation privilege could apply and if there was for example in a florida state court in miami would not apply the litigation privilege to a court in broward county in orleans or in fort lauderdale or in orlando it was broader than that he did say that litigation privilege should not apply outside the context of a judge cold case and that would my mind include for interest actions but he never argued that the reason for not applying litigation privilege in the four injured stations is because there are no procedural to protect due process protections there he had asked that i'm not sure he has to ok specify the reasons if you preserves the issue of course he also have to press and it's very slow for a court will take a closer look at that i just assumed it was in the case but from the oral argument this morning i'm not sure that question is in the case what one thing i am relatively sure about doesn't look hard is that there is no florida decision point resolving the issue one way or the other that is correct i have not sort of the question well that's of course within your honour's discretion to certify that question to the florida supreme court if you desire it would seem to me in the context of this case where you have so many other reasons to affirm what with judge moore did here including the fact that they had consented to the injunction that they saying damage them well except that the problem there is that consent occurred after some of the damages had a dirty occurred and and the other problem with that is that as a result of the previously occurring damages it didn't matter that they consented to the monitor because they still couldn't get any deals the damage was already done in other words so i think that's kind of a problem for your client that well if you course if you accept the pleading that they have done but the attachment to the pleading show that every one of the suppose a lost sales that they complain about happened after the monitor was appointed and they had the ability to lift the injunction through the monitor if they had wanted to try to understand he has allege that there were damages caused earlier because the publicity and so forth of these injunctions made it difficult for them to negotiate understand that they couldn't get any bank to to give them any money as a result of all of the things that had already happened and but also i think in the context of in your question judge to be you know was should you certify this question you have a situation here where you have a criminal referral an s e c permanent bar is this the case that you want to try to make this law on that alone to me certainly a case for malicious prosecution here was unwarranted in view of the fact of what former u s attorney and federal judge and two federal judges making criminal referrals and finding that this was a ponzi scheme and that the allegations of my client's complaint were sensually true well sort of i mean it seemed to me that the magistrate judge also suggested that mr kaplan was involved in the is and whether or not mr cathy was involved mr cat which was not my client's client and whether or not mr catlett should have been a defendant doesn't doesn't bear on the issue of whether mr elliott and his company should be defendants they were the ones operating and and as judge scott found in his report the fraud here was two levels one was the raising of money through securities fraud and the other was mismanagement  in i think it was our wasn't maybe a misunderstanding and so please feel free to correct me to my understanding was that the lawsuit was on behalf of the agents of explains the aguilar action and in that letter the sales agents which were three or four hundred in that lawsuit but your side mr catlin's from that those sales agents were also investors in order to sell you had to buy so they were these agencies were complaining that mr elliott had stolen from the project that they were themselves investors as well as salespeople it were it's truly a pyramid scheme  not rule on the basis of malicious prosecution and lack of the probable cause here was apparent to everyone for filing the case to my clients filed the case and even the aguilar clients filing the case against the  elliotts for their their theft from the from the project judge moore rule on the fact that one of the defendants or the plaintiffs in this case wasn't even a defendant below and so there was no wishes prosecutor i agree with you on that for those those two bases he thought were objective leaf frivolous and the amount of fees he wore awarded were you know much less than what we were asking for it was a reasoned reasoned sanction are not any other questions i'll counsel's recitation of facts comes from a lot of places but not the complaint which is what we're dealing with i think is a couple points here i don't want to fuss with the chief judge about this but the fact of the matter is  florida law i do not believe that the litigation privilege would apply to this situation even if it was now the case in florida counsel you understand i'm not fussing with you about that first saw trying to fu period but all i was trying to get you to do was answer the question of whether the litigation privilege ever applied at all to matters arising from foreign litigation because if it does your argument that it wouldn't apply to this situation if it weren't a foreign jurisdiction i mean a foreign litigation matter would be moot we wouldn't have to address that and also that whether it applies to foreign jurisdiction matter is arguably and i think that's apparently more important in the broader sense then whether it applies under the this particular set of facts not more important to the resolution of this case but more important if we publish an opinion to what we decide and for that reason we were trying to get some help on that broader issue and case we decide to decide the case on it are at least we decided on the way to deciding the application of  the facts that's that's why we were asking about that and you've made it relatively clear that you don't have any bizarre millipede to assist us any further in that i'm not saying that critically  you've said all you want to say on that i'm not going to ask you any more questions about it we'll do the best we can judge i start out by answering judge being as question that there i'm not a snail or not and i am not in any way shape form or fashion criticizing you for doing that but perhaps not but only question that we have it so if the second question is should it applied to foreign jurisdictions i think there are problems that have been on earth and articulated by james rosen bomb to make it clear there are problematical particularly in this case i mean you take a cancel injunction you go to a dominican court you get them to enter an injunction which in effect destroys property values and so you know it's protected by the litigation purposes no policy reasons to do that and the cases in florida definitely go on a different chain and if there is an issue as to whether or not florida wants to extend the litigation privilege to what i consider to be appalling circumstances that should be decided by the supreme court  debian is right about that refer to the supreme court of florida see what they think but the suggestion that the existing body of law in florida is intended to protect this kind of conduct and then to talk about his client as being separated from diaz when they're brought in together when the allegations of the complaint or they plotted together where the allegations of the complaint or the basically they set up this scheme so that one of them could claim to be a victim and mr catlett who he makes a big point about a criminal referral which is of course not in the complaint as far as mr kelly is concerned well mr catlin just currently being prosecuted in san francisco in the federal system for exactly the same things that is simply not worthy of the court addressing what's worthy of the court addressing is whether or not the court wants to stand behind the premise that the litigation privilege should be extended in this fashion and it would be an extension because it is not our to as far as florida cases are concerned and the allegations of the complaint are pretty dreadful in my pain in the sanctions point the fact of the matter is is that i think is judge rosenbaum would recognize you could sue some for malicious prosecution even if they're not a party if they were part of if they were injured as a result of it and then the other thing that fascinates me is the suggestion that this is some sort of ponzi scheme or pyramid scheme it's a great pyramid scheme take one hundred sixty million dollars and turn it into zero there's a pyramid scheme for you what kind of person builds that kind of pyramid it's ridiculous mr diaz and mr oren and the arms the people plotted to take advantage of these people who had a lot of money but apparently not a great deal of common sense when it came to some of these things but the fact of the matter is the complaint as it's rafted and the record as we have it make it clear that the litigation probably should not apply and judge moore should not have entered sanctions the way he did and as a matter of fact if you take a look at the docket it took forever even to be able to take this appeal because the chief judge took a year and a half to deal with a motion for you know for a motion for a default which blocked us from being able to take an appeal we took one pill in your honour's properly sent it back down again and we had to simply wait for him to get around to do that when it should be done some point in time earlier so you would have us this sad this case on the assumption that the litigation privilege does apply if it applies under the facts and circumstances to a foreign jurisdiction the same as it applies to domestic jurisdiction no i would think that your honour's respectfully would refer that matter to the florida supreme court i don't mean it's up to you i mean the court is in a position to do whatever it wants to do but unless it feels that it has a clear indication from existing florida precedent as the what the florida supreme court would say about that i would you know you're asking me what i would do i'd flip it over there