is i'm sure all of you are already aware this is a case pled under rico where nine defendants joined together to form an enterprise where they would among other things attempt to sell jet fuel to air carriers like my client kalid air representing that they were backed by a phony bank the atlantic bank which as it turns out was never authorized to operate in michigan or the united states but the financial part of the defendants in this case help themselves out to be affiliates of that bank and they held themselves out to my clients to have a five hundred million dollar line of credit for the support of petroleum products sales so that my clients would and others like them would rely on the representations and enter into a deal with them for the we have is that once he had what the defendants had extracted from your client all the money they were going to extract it was over it was  period was the thirty two month period instead of ending when the money was gone from the account and after that it was basically sort of loving messages but at only three of them and no further period of time but the predicate that stretched over some period of time and the threat of continuing activity into the future the closed period issue and there are two things about the thirty two months first i'd like to say that the defendant don't get the benefit of the fact that they emptied the account of my client's money and i think the waiting angel's case is a good example a good explanation of why the criminals don't get the benefit of getting caught which is essentially what happened here my client terminated the escrow agreement because they realized that or they thought that money was being taken from this account and they couldn't reconcile the amount of jet fuel they were getting and with the amount of money that they were paying something was going wrong and they weren't getting explanations for so when they terminate the escrow agreement and the after within the next couple of months the escrow account finally gets depleted the defendants don't get the benefit of that and period in may of two thousand and ten simply because they were caught it was  thirty two months the the projecting out past the date of the account being drained if you look at what the defendants were doing in that period i think that is the perfect evidence that satisfies the threat of the ongoing criminal activity portion of the that prong of the test and what it would be if there's no other victim that considered that would be you know well we do have other victims but but setting that aside yes i think cell we do have other victims setting it aside i think so and i think so because these these communications between the defendant and remember gerth got shock who is sending communications to my client trying to describe the deals that are underway that will allow them to reconcile in the account and they can continue going on business as usual garth that shock and you can see this in exhibit two of the first amended complaint is not only a managing member of g s b the enterprise the entity that was set up for the purpose of conducting these transactions but he also holds himself out to be the vice president of the bank first international exchange corp and exhibit two shows his signature as vice president of first international exchange corp the bank with the five hundred million dollar line of jet fuel credit from the bank that doesn't exist in the state of michigan that eventually enjoined from operating in the state of michigan by the attorney general's office is also holding himself out as and is the managing member of g s t so he is working both sides of this scheme and he is communicating with my client in both of those capacities as as the bank and as the jet fuel provider by saying we're financially stable we can handle this all you have to do is give us a little bit more time and we'll be able to reconcile things will go on business as usual so the last communication we include in our amended complaint is in two thousand and eleven and so that takes us to a thirty two two month period if you're looking at a rigid time based requirement but one of the things that i think the where the mistake where the lower court made and i think i've seen in a lot of opinions is that a rigid look at a period of time in months isn't really what the supreme court had in mind and we're talking open or close right now we're talking close right now so at thirty you know were are allegations in the complaint cover thirty two months when you talk about opinions that you do not admire in the area it's moon and i think that that if you go back and and look at what the supreme court says in the h j case the supreme court is recommending and and holds there at a much more flexible approach needs to be taken when you're looking at apparently very hard in the delivery of jet fuel because prices fluctuate every day and weights fluctuate from you know one point to another so it's really hard to reconcile which makes it easy for  samus but there were lots of payments you know i have it in the amended complaint i want to say ten ok ok that's alleged in the complaint yes and ok that's very helpful and then for the open ended conspiracy you know i guess the test is whether the predicate acts pose a threat of continuing criminal conduct extending beyond the period in which they were formed my question is at what point in time do we measure whether a threat would have existed do we measure when those initial x happen or do we measure it some weight or time do you have an opinion on that yeah i think you know i think it maybe this is maybe this is the ha case but but i think the case law tells us that we need to look at it during the time of the predicate acts themselves so this is a mistake judge friedman make made he took the the facts and looked at them in hindsight it tried to make and have to form an opinion about whether or not there was a threat of continuing activity by looking in hindsight after it was all over and i think both the h j case in the heidrick case tell us that you can't do it you've got to look at it at the period of time when the predicate acts are over here you know what point in time are you saying we should look at we should assess a threat i would say from the period you know that this that this case all you're putting money in the  w or something certainly between the period from january of two thousand and nine when they come to us with this deal and start making representations through two thousand and eleven when we have the last set of communications trying to facilitate the further end of the scam but what what is it about it from the beginning that makes it continuous open ended i mean it's a month to month deal when i read an evergreen kind tract with a sixty day right terminations right so the point i'm getting at is does this mean every time you've got a month to month deal with the sixty day terminations period you've crossed the line after a couple months how does this work in terms of open ended you've taken on the easy part which is we know you're not allowed to look at this after the fact and say well ha it wasn't open and exists i get we get bad i get it that's a good point but how do you look at it from the beginning and because it doesn't seem to me right that every month to month with a sixty determination window is a rico scheme got the right open and continuity right well you know in i think that that's you know i think it's a good question and i think it's why we do have to look at the totality of the circumstances and exactly what was happening here not only with respect to kalinda but with respect to eradicate your air base that makes me not have to worry about totality of circumstances  and all of the case that this because that i get your first point when i'm trying to figure out is how you write an opinion that doesn't say oh if it's month to month we're off to the races this does look fundamentally like a breach of contract case right and not all going back to the h j case again what the court tells us to do in the court gave a really good example of this and i think that it addresses this month to month issue so the court in each state gives an example of open ended continuity in the time period that you look at and basically the court said you know take take the example if you have a insurance salesman and the hoodlum insurance salesman goes around to shopkeepers and sells them insurance on a month to month basis the month premium is the money taken from the shopkeepers for the alleged coverage for window breakage and as it turns out there's really no insurance coverage but as long as the hold them insurance agent goes around month to month collecting the monthly premiums they continue on with the scam and that might be a very short period of time but what it does is evidence a threat of continuing activity this continuing activity in the future because until intel the scam is over until they run out of money or they get caught or for whatever reason even over a period of just a few months and i think the court uses that term you can and this would is a good example of an open ended continuity issue that that would be a rico violation and the point at which this changes from breach of contract to rico in an open ended issue the answer that you just gave said nothing about one of the questions that i had about considering the victims in this case is that that that one of them has nothing to do with jet fuel does have vaguely to do with escrow accounts judge looking at the motion to dismiss properly take into account all of the information that you now want to argue through the briefing about that case number one  what would be the requirement for you representing kalita to put into your complaint in this case the nine be satisfying allegations of what you  another victim of the same rico based fraud that user to pap and you well i mean i think notably with the arrow victim that was a bankruptcy case you know we don't have any control over what the lawyers decide to allege in their complaint the law is the law i think with respect to the interplay between breach of contract and fraud cases particular with rico every case that the court has had before it that has dealt with rico has ultimately ben a contractual arrangement between two parties or more than two parties waiting angels heinrich vs waiting angel's case or you know i have an agreement with you that i'm going to adopt a baby that is fundamentally a contract dispute and it's nature but there are things that take cases out from the realm of contract into the world of fraud and that's what we have here and the allegations that satisfy the nine b issue deal most tangibly i think with with the bank comfort letter and the phony atlantic bank so p comes to my client and says we makes representation is that were false we have the backing of the atlantic bank which is a legitimate bank and we have five hundred million dollars worth of credit for the purpose of facilitating jet fuel sales we know that was fall we know it was made for the purpose of in making my client rely on those false representations my client didn't rely on and so now we're past the point of contract and now we're into fraud and we have pled it is my opinion that we have pled the elements with specificity necessary to show all of the elements of fraud both under rico and