misrepresentation concealment and neck with your misrepresentation which are based upon the cac and notations what we don't have against wessel and we don't have against have there's an about how sweden has a superior banking system their money would be safe their money would be liquid and they they omitted any statements about the fact that it was a credit union was essentially unregulated that didn't have a presence in sweden and essentially did all of its invested investments in washington state so they point to those statements as being completely discrepant with the representations that were given to alexander what's the response to that the response to that is one website that that existed answered all these questions it it was filed in this doesn't really go more to justifiable reliance in other words there's the court found that there was just about a real justifiable reliance on alexander's part even though  misrepresentations first we need a misrepresentation and we also need so i think the reliance goes to more to the to it overlays all three causes of action for cause of action so we have to say that the district court clearly heard because it's a question of fact as to whether the reliance was justifiable or not so what would be the basis for saying it was smelled like a rotten fish isn't that what our standard is something that science if it yes i i  know the saying that the that you're that the justices referring to and what i think happened with all due respect judge fisher didn't like my clients didn't like what they d whether they are safe we are unsavory is not the test the test of intention is reputation concealment damages which with which i haven't gotten to i asked another related question on your point on intentional misrepresentation because the court made alternative findings either that these are facts and not puffery in merit pinion but if they weren't then alternatively the superior knowledge pronk could hold them liable and it seems to me that  findings would have to see where did the court or on superior knowledge conclusions maybe you can point me to something specific in the findings of the district court's findings of fact on that i think the with with all due respect her honor in the district court put the burden on the defendant to prove we're not as opposed to put the burden on the plaintiff to prove you are and like i believe where i'm her owner erred aside from the fact that there is a disconnect in the negative misrepresentation he argues the plaintiff argues it's it's it's we we didn't prevail on that yet the judgment signed by her owner well that doesn't actually get to the point here's what she said when she said well even if these statements were not  the facts and have made the same recommendations and perform the same function for many clients so alternatively the court found that the intentional misrepresentation related claims were supported by the superior knowledge principle in terms of what i just read which are factual findings is where is the error i think is in the following tuesday say a dog is a dog doesn't make it a dog if you don't want to does it scraps does it park so to as as mr alexander in many many places in the transcript he placed complete reliance upon what he was told he didn't look he didn't was he didn't say it's a dog but it's but in fact you looked over and everyone knew it was a cat she said i looked at all of this and i didn't see a cat i saw a dog scratching and here's the things i saw him scratching so that's what she said she was recited what she saw i agree and when she heard she's able to me she has to make a factual and credibility determination right correct and i know it isn't one of the facts she says in the movie and this is based upon my observation and well that's what her job is she says she's hearing the case and so did her honor the tech herself and is there facts in the record that that is that is what the the mitchell like i said he was an asset protection specialist but the records show that he had no particular training or experience or knowledge isn't that supported by the record i don't know how many years you have to be to if that's all you do then you're an expert in the the and that's why people listen to people who say look this is what i do i'm in the asset protection people i tell people where to place their funds and and the client says well that's good because i want somebody who's been doing this who is an expert who's been telling clients were in place for funds but you're just telling me not you but the client is basically making those representations so it's not only the representation but it's the impact of the representation on the investor as well i still am having some trouble as i think that you could is is figuring out well is is there something that's not supported by the evidence and is there something that's clearly erroneous in the fact findings there's a lot of findings here i've met but that was an effort to try to document were two million dollars so we don't know what you're saying is that even though she said something to the effect of well i've looked at everything and i you know i think they have the ability you're suggesting she when she needed to have more documentation or more texture on her ruling on that point proof right those pesky little falcon let me ask you this yes let's just assume that we were to river we were to agree with you on the punit and reverse because this element of financial ability to pay is missing there's an unusual thing here where at the end of the trial  basically alexander got a choice on rico versus punitive damages in your view if the case were to go back to the district court with that choice be on the table again or  or proof you have if if this court feels you haven't crossed over the threshold and you haven't crossed the bar through award punitive damages that portion if not all of it we're going to reverse well so you want to say that part of the judgments vacated but the other parts not you set your point i think the and it's didn't do different reasons why the judge whether the lack of elements whether it be reasonable reliance whether it be i didn't look at the web page until my brother after i'd sent the money had had it pointed out to me but the promise of dummy and up the promise of church mckeown his question was what happens on retrial not not back to justifiable but why it's the judgement set aside because the trial court erroneous lee did not go into the financial condition of the defendant you say it goes back only for a determination of punitive damages and that the rico three times five twenty eight can't stand is that your position i'm my position is is that there is insufficient to support the findings and there's insufficient facts of the alter ego liability and there's insufficient facts of the punitive damages so whether the justices feel we're going to reverse and start start from square one funny i understand that right now you've used your time but we'll hear from alexander's coun thank you your honors edward biologic for plaintiff in appellate time alexander your honors we know what the case is about in two thousand and eight my client had five hundred twenty four thousand plus dollars he wasn't looking for an investment he was looking for a safe place to put the funds that would be accessible whenever he needed it he relied upon the guidance the purported credibility an of these defendants help to guide him and tell him where the safe place to put his money was that was this so called swedish credit union the  s what he didn't know what the facts that were found by the court in this case are the misrepresentations the concealment and the evasions i find myself in an unusual posture in light of the last few comments of the court with respect to the unit of damages i'm kind of urging the court not to intervene with the award of p damages number one because it is factually based the court did take a look at all the unpaid amounts out there and whatever bases counsel has for asserting th settlements made with mr or dr top a while the fact is there's millions of dollars the judge found that was unaccounted for and that money was in the possession of the venice where does it say that i mean it says i looked at all this stuff and then there was a collected i'm trying to figure out do we have any sense of what is the network what are the liabilities i don't know if there's any libel i don't know either but well that's think the way i read the appeal it's not you know an x on her b m w type appeal on the relative ratio it's a question of under california law if you make a punitive damages award you have to benchmark that against net worth or some other factors that give you a sense of ability to pay and so that's really the challenge i think it's a fairly narrow challenge and the question then is did the judge's single statement justify the ability to pay portion of the requirement well i would argue that it does because don't forget these people were wheeling and dealing in real estate they had lots of properties in washington state that they own where they were financing and i would suggest that the court took that into consideration as well as the almost three million dollars that was still unaccounted for from the three individuals who testified at trial including my client but to follow up on judge pratt's comments if the case is reversed on that grounds then we do have a retrial at least on that yes to and the other option is that if you and i really disagree with counsel statements that we live or die by our election to go with the punitive damages against mr wessel versus the treble are you got a choice and you know you rant but it's like going on the game show a or b and you chose b but we had at that one that really be up to the trial court to determine the scope of her ruling yes and i would certainly argue if i were back in front of judge fisher that we will just offer the original choice which is we have trouble damages from rico and will select that and so i'm putting myself in the position of kind of arguing trouble damages against everyone the i would like to know and if you did that just i'm not trying to encourage any appeals but just trying to understand the posture then that would be an new judgment at least on the piano to damn i mean it scuse me on the rico damages correct possibly yes and so we're going to open up another can of worms which is kind of a waste of the judicial resources but i know this sometimes happens we would be going into financial it's you know issues along those lines or just suggest to the judge that she simply stick with the treble damages against everyone the real problem the defendants have and they've had it since they the trial started and that is that they simply weren't believe the judge saw what happened i said i submit that counsel said the judge didn't like the defense i suppose that's true to a certain extent because she heard their testimony and it's a funny thing about judges i've run into this over the years no judge likes to be lied to and when they get the impression they're being lied to they tend not not really either on appeal or for us to factor in well i just wanted to make that clear because the comment was the judge didn't like the defendants and that's why she didn't like  to me the evidence was overwhelming based on the on the court's questions and the comments i don't know how you get around the evidence reforms as judge me they are simply well sourced in the record in the testimony in the documentation and under the clear air standard there's simply no way that reversal would be indicated  could you tell me how we square up the rico ruling with the ruling that there was alter ego liability between wessel and the companies because under rico there has to be a distinction between the enterprise which the district courts and was the group of corporations and the the individual the person and if there is if if wessel was the alter ego of enterprise which the supreme court has told us could if you're an employee or a director but here the court found that he was the same as the corporations well but he was also a director and he was also an employee but according to the court he was the alter ego so there was no distinction between the corporations and him i mean otherwise i don't see how her punitive damage ruling makes any sense because the information was at the money went to the corporations and not to the to the individuals the the information she was relying on so these these three rulings seem a little bit inconsistent well  understand it so that would make sense with her punitive damages ruling because she was looking at what many of the corporations might have a claim to but doesn't make sense for the rico ruling where the person who has rico liability has to be distinct from the enterprise which in this case she found to be the corporations well there's also the overall fraudulent scheme which was implemented by these  various entities and these individuals but mr wessels position was more as the the divisor of these schemes now it may be that the author ego findings are inconsistent but i don't think the court was viewing it as first of all these these entities are the front and nonexistent and i think what the court was doing there saying all these was trying to figure out yeah but i think i disagree with you on his conclusion but you know i'm not sure what the judge was thinking when she found the alter ego liability other than that was the way mr wessel was doing business so so is the alter ego ruling do you do you believe is it your own ass well i i think in retrospect it was probably unnecessary and we alleged it in our complain at the outset of the case when we didn't really know who was doing what but it's not necessary because the plea that doctrine is invoked where a party is trying to shield him or herself from liability hiding behind the corporate guys we didn't have that here so i don't think it's really in the nest was a necessary finding so much where the corporate entities that were actually parties not want to eight hundred no and not the alps companies incorporated which was doing business is inc way and presidential services e s i right and all of those ended up in bankruptcy and i suspect that seeing the way they were all manipulated into bankruptcy that that was probably one of the motivations for the courts finding a bald eagle you know one company filed a week before bankruptcy well we don't know who who held the money in those companies and what what properties they had i mean if you look at their bankruptcy schedules which were not part of the record i suspect you'd find that they're declaring zero assets and that's just seems to be the way mr west was doing his business so they so the punitive is award is against west so that's  so if you are looking at a net worth you're looking at his personal net worth and was there anything in the record at his personal network no more than how can you sustain under california law the punitive damages award well as i suggested the punitive damages was based upon the unaccounted for funds that were in had come to mr wessels possession through one or another of these entities admittedly we didn't take a financial statement from him there was an evidence specifically on that line i think the court was simply looking at the overall picture and all the properties and funds that had been unaccounted for and concluded that there was enough money there because it didn't show up in anybody's bankruptcy that that money would be available to satisfy the damages the rationale for california punitive damages law that you have to know how much money the defendant has in order to know how to teach him not to do this again you say you set the record that's more or less the rationale ok there is a concept of punishment obviously that's right all of too good that it's got to be enough to standing and when you're looking at one point six million versus two million nobody has to pass a financial all right thank you thank you both for your argument this morning the case of alexander versus