ready in the morning your honor may please a court opposing counsel your honors i represent this lords my stories she's a real state professional here in south florida and she had a partnership with her boyfriend  and they had a falling out this case involves basically that falling out and a single claim under the store communications act is of rare case and ruhleben where there's direct evidence that the litigant brought the case in bad faith there was e mails when they had a falling out in august where he literally says i will bring the worst imaginable team of attorneys against you well let me ask you this we're reviewing for abuse of discretion in most of the issues that you're raising right ok so in today's world and maybe even in yesterday's world people often file lawsuits because of personal feelings of animists but that in and of itself is not the only determinant about whether or not a case is filed legally in bad faith because i may have a claim against x but decide not to go through with it because i think it might have been an honest mistake and i'm just not going to on the other hand if someone has really done me wrong and has shown me enemas then i might say i'm going forward i i there's interest but isn't the standard whether or not there's an objective good faith basis for a lawsuit and wait let me ask just one more thing that you can answer at all and here with respect to whether certain damages were available under the act at the time the lawsuit was filed wasn't the law on clear in the circuit on that issue well there's two there's two issues to the first one you're saying is whether the person is acting in good faith i believe the standard is ordinary person with a reason ordinary person would have brought the case under the some similar circumstances well you can bring it you can bring out a lawsuit for a breach of contract for a dollar most people wouldn't bring a breach of contract case for a dollar but legally you might be entitled to bring a breach of contract case for a dollar what do you do in that sort of a circle i think it's a matter is under the wall there's case totally the circumstances including the tenuous nature under wallers a tenuous nature of any of the elements or the unit or the claim itself it's one factor is is like you just said the damages issue and i don't i believe under the d a s case that it is this matter that the district courts in this circuit were not clear on whether dan actual damages were quiet because under the dia's case in this circuit this court has held that when the plain language of the statute and another circuit have held that actual damages are required you can't go to district court cases and start saying well look there's these district court cases that we're relying on sure you can well people are always trying to push  below and if you didn't allow that then you would say oh one some of jordie of circuits have spoken then you can't go into one of the unsettled circuits and advance a contrary position that you got to be country for decades had ruled that materiality in the mail and wire fraud statutes was an issue for the court and not for the jury every single circuit had said that supreme court takes up a case and says hey you guys have gotten it all wrong for all of these many years is an issue for a jury but it would be hard to say that those defendants who kept pressing the issue understanding they were foreclosed by circuit law and i know it's different it's a criminal case i know there's no rule eleven there but you get you get the chance to press an unsettled issue within a circuit as long as you acknowledge contrary authority right i would i would say i understand what you're saying your honor i'm just going by this course decision india says that if those two pieces factors are present there's a circuit court out there and there's a statute as plain language says whatever it says then the case in its objective standard whether again that's just one factor though again whether or not actual damages are required let's go into this a little further let's look at all the factors again e mails that say i'm coming after you and i'm going to crush you financially prior lawsuits adding the other lawsuit to this lawsuit and one of the biggest factors i believe in this lawsuit is this you have been a plaintiff only attorney we should require the court to strictly look at this case because now here you have a plaintiff where there's like let's bring in our state law claims where we don't have attorney few provisions let's bring him in here let's muddle it up even though this case this claim is really no good we need to go forward on this claim and if we lose who cares they don't get their attorney fees but if we win we get ours so that was the basis why we use looking at it from a ruhleben perspective the only way that you can try to stop someone from going forward with a frivolous claim is honorable levitt because now they've tied in the state law claims and you're looking at it from from that perspective all the allegations that were changed the challenge from the state law case when they said it was a joint venture they moved over here oh we're going to call an independent agent now we don't want to be a partner because if she's a partner then of course partners had equal access to everything which would include the email a let's leave out the fact reasonable inquiry on her there was no mention of any reason  by joseph also by the magistrate which requires them to go in and say hey who created this email account it was undisputed my client created that email account it was also judged cons said if she created that email account that would be a significant factor that would seriously undermine their stored communications act claim so then what's he doing he says well she was kind of like my secretary do you share profits with your secretary do you have emails that you send other people saying that she's a partner that's what the evidence was in this you all this is evidence in the record and then you even have where he tells the police yet we were in joint ventures together all this is before the lawsuit was filed and those are the things you have to look at most importantly because after the lawsuits filed of course someone just because they win but from a perspective on a are is someone is more likely to pursue a frivolous claim when it's a plaintiff only provision they're not likely to pursue a frivolous claim when it's a prevailing party provision that's my point you wouldn't do it because you're like if we lose we're going to pay their attorney fees that's what i'm trying to say that's as serious big factor in this case and it also it about when there is no fee shifting provision at all what is there is a presumption there exactly it allows the court to give plaintiff their fees no no i'm talking about use you say that there's an  incentive or i think you're suggesting that there may be an incentive to bring a frivolous or close to frivolous claim when the attorney's fees only shift one way to act like i'm asking you whether you have a feeling about whether or not there's a presumption of which way things go when the claims don't have any fees shifting provisions at all let's say a state law common law claim th there is a one sided fee provision i think there should be it should be i highly scrutinized that's i guess what i'm saying your honor because you're looking at it from the other party's perspective again they don't have anything to lose and what i'm trying to bring up is it's not just all this circumstantial evidence this is a rare case where we have direct evidence were the person the plaintiff literally says and the judge quoted that he was going to crush her financially he was going to bring the worst management team attorneys and he was she was going to spend the next years of her life in courtrooms i want to give you the chance to address one of the reasons that the magistrate judge in the district court gave for denying your sanctions motions which was that you researched after this court's decision in vista where you then made it clear that you needed damages i served another motion and after they also didn't disclose any damages i served another ruhleben motion in june of two thousand and sixteen judge conn said he was going to entertain any sanctions till at the conclusion litigation what happened was at the conclusion litigation i read this rule broken rule says i have to comply with the attorney provision so i dropped another motion to stay on my grounds in that motion i attached your honor both of those ruhleben motions to my motion for attorney fees judgment the magistrate then says i'm going to treat and i also separately filed them on a notice of filing both of those will lead motions i follow them separately documentary both of them to the motion for requests for attorney fees saying i'm relying on these motions and also here's all my billion voices you're saying you had given before you filed your last motion for fees you're saying you had complied with the safe harbor provision because you had previously served the required notice and the district court had said i'm postponing anything about that until the end of the case yes and i also served a copy of the a motion for attorney she so i served everything before they were ever filed so i serve the december december motion i serve the june motion i didn't file them because judge concept i'm not taking this up the conclusion litigation if i started filing motions and he's going to say why are you doing that i told you not to do that i want to ask you one more question related to that because i to ask your colleagues about this as well that magistrate judge in the district court also said that even if you had complied generally speaking with the safe harbor provisions the grounds on which you sought fees at the end were not the same as the ones in which you had sought fees the previous two times your honor i will say this in all of the motions we said that they brought this case for an improper person the purpose of harassing her until she paid on those claims and in fact if you look on the report paid documentary three zero one piece thirteen the magistrate even says he finds that we brought this we raise the issue that was brought from the improper purpose in my opinion an improper purpose of harassing someone is bad faith so i didn't say bad faith i believe if you bring a lawsuit to harass someone until they pay out another claim and this court has a case on that basically that's the entire point you know i hope i address your issue but you did it but essentially gave you a chance to talk about them you know as far as as far as what they found if you look on page thirteen the magistrate says that we raised that issue for them to say that we waived it i've put it in every motion that it was brought for the improper purpose of harassing her and at no point did i ever say you know i don't want to bring that any more because they're they're being nice now no i never would waive that issue your honor ok stabenow we've got the main part of your argument and you've saved all of your time for rebuttal and good morning may please the court i'm joseph all chal i'm here on my own behalf i'm also here with mr robert rosenberg who's here on behalf of eric rohmer now i'll start with just addressing a couple of the points that came up there was reference to a state court case that's not before this court i don't believe it's in the record but you know again you  references to a partnership as being an undisputed fact that's not an undisputed fact there was no findings by the trial court on on that issue you know virtually everything he said that he represented as fact is disputed issue a fact but i want to address th e notice issues that the court brought up and with respect first with respect to the order that judge kahn entered that talked about coming back at the end of the case what happened is very early in the case fairly early before he had done this discovery from googling g mail he made an accusation that mr romanov lied about changing his password on july twenty ninth and august twenty seventh mr romanov retained me on august twenty sixth so there was an allegation that he lied and then he went and amend it in his case is sort of a counter claim that that i had my client conspired to purge present perjure testimony backed up by fabricated google e mails that mr romanov created because of that he filed this omnibus motion to strike it was docket entry ninety five and that's what that that mo n was about it was about creating perjuring under oath about password changes and then creating fabricating e mails to corroborate it is that at least one of the two early sanctions motions reference to claim that your client had filed the claim for purposes of harassment is that not accurate mr stabenow always said that the case was about harassment i don't dispute that he said that the case was about harassment what i look at is what was set forth in the ruhleben draft motion to the safe harbor or what was set forth in that motion which when judge kahn denied that motion would judge kahn said is you can you can raise the issue at the end of the case he didn't say here's open carte blanche anything you don't like because this was a never ending rolling circus of accusations of as hard as you can through the middle of the torso of the corpse i don't disagree and i can't get out of this case when i tried to get out of this case he oppose me withdrawing from the case you know just last week he subpoenaed me to come testify in the state in a different state court case i can't get away and so i agree with you one hundred percent you know that there is a disaster but here's what the differences if you know all of the allegations that have been made about me are fabricated allegations i i have a conversation with my client never occurred you know i we conspired to commit perjury and to create false documents the allegations he made are in the court record of the documents that he filed he filed the documents making this false conspiracy claim and this false allegation he has filed the documents making each of the false statements that when the court says it's a disaster it's absolutely a disaster and and practicing law in south florida for nearly three decades you know i have never seen anything like this and never been subjected to this but the one thing that i will certainly say is as counsel tells you you know about an incentive where an attorney free is not two ways an incentive to pursue a frivolous claim i have never pursued a frivolous claim in nearly three decades of practice and i didn't do it here this claim was not frivolous now this claim had multiple elements of damage to it now when when this client came to me this is not somebody i knew beforehand i mean i know that  certainly the appellant and her attorney and mr romanov all had some prior relationship i was a stranger to that party and when i when i took this i took this to collect two hundred sixty thousand dollars and to address real estate issues that were going on between the parties and it was only through my communication with mr romanov that it became very clear that the appellant was reading mister romanov's e mails and as a result of  reading his e mails the e mails between us information that she couldn't have known other than by reading his e mails and i understand there's disputed issues of fact about that but as a result of the that incident that's what ultimately led to the recommendation to the client to change his password that ultimately led to the allegation that he never did changes password and he committed perjury you know simply the recommendation that you need to do something with your e mail because it appears that that  e mails are being monitored and he talks about the state court proceedings counsel actually used one of the e mails in a state court proceeding one of the e mails that was between mr romanov and the third party that his client wasn't capito on that they they used that to cross examine a witness in the state court case so the reason this case was brought in federal court under the stored communications act is because miss majors was improperly accessing mr roman e mails which is exactly what the s c a is intended to remedy now i'd like to point out on that issue this record never got to a finding on that issue it didn't the only finding the district court made was on the very narrow issue of actual damages the district court didn't get to end and the holding was that absent actual damages you're not entitled to statutory damages now there was a statement by counsel when he was up here before that the issue was unclear by the district courts in the circu issue was an unclear by the district courts the district court was clear the vista district court was abundantly clear and they represent the district court did a survey and concluded that the position that you didn't need actual damage actual damages for statutory damages was the majority opinion in the united states this panel disagreed with that the eleventh circuit of course that disagreement came after this lawsuit had been filed now curiously in none of the motions for sanctions none of the rule that he fired filed before the judgment that he addressed the issue of actual damages so when he talks about about the magistrate not properly reviewing his his  judgement ruhleben motions the magistrate reviewed them closely he stated that he read them very closely they never addressed the issue of damages you know the the issue has been thrown out there you know certainly to cast aspersion on me that once vista was reversed that i should have stopped litigating that case and of course first of all that ignores the issue that vista was not only about actual damages and statutory damages that the acts still permits declarator relief such as who owns the website which was an issue in dispute the right to continue to access she that mr romanov had no right to stop her from accessing that's it that's an equitable injunctive remedy attorneys fees damages if it's done willfully all of that was still available regardless of this court's decision on actual and compensatory damages in this stuff but aside from that once that case was decided as you're reading counsel's brief you would think that that it was clear and he brought it up and he raised the issue but you know what that issue was never raised i didn't know about the reversal of vista until after i had withdrawn from the case and summary judgment had been granted he didn't raise it in his motion for summary judgment he didn't raise it in any of his ruhleben he didn't cite this to he didn't cite the fourth circuit case in van alston he didn't even talk about the principle of what was it issue in those cases and then in his reply brief in response to the answer in summary judgment when when successor council what also unaware that case had been reversed simply made the argument but were entitled to compensatory even action even absent actual damages then on reply he came back inside cited the eleventh circuit case and as a result judge kahn addressed that issue and granted summary judgment there was never the issue raised what about additional compensatory damages which which are are in the record things like web hosting and and the actions  mr romanov had to take to try to stop what was going on that was never addressed or raised by successor counsel now i do have a couple cases a supplemental forty that i would like to to provide to the court and provide to counsel should i do that after if you're going to do that you need to do it with the twenty a j letter so that mr stabenow has the opportunity to respond sure we have if you want to give him the actual cases today just as a matter of courtesy that's great that's the twenty first s brief that i think are dispositive on the facility issue which you know is the for the facility and damages or are the two ruhleben issues so the on the facility issue first of all in his in the initial brief first in the reply brief on page one counsel states that the question in this case about accessing the facility the way by the way the appellant accessed the e mails is a novel question of law and  was of course made in support of the argument to try and have oral oral aren't before this court but this court has decided in precedent in the cases that i'll be submitting the baker cases versus alderman which was also cited in the magistrate's opinion that ruhleben is not something that should be used for novel issues in novel cases and so on that basis alone that should be dispositive on that issue now also let me just say if the cases that you're sending us were cited by that this record or by the so it's a novel question of law the second issue is the issue of connection and accessing at the syllabi and appellant says on page eleven of their brief they admit that their phone was connected to romano's e mail account which was on the g mail facility so that admission a loan that her phone was connected to that account connected to that facility certainly should bring an end to any issue on whether there was an improper access of osip whether there was an access of the cillit of course whether there was authorization was another disputed issue but but the ruhleben issue that we're here on is whether there was access to a facility and i think in their brief they have admitted access by virtue of that statement just so that as they've admitted that it's a novel issue of law do we have time for mr rosenberg to address the perjury issue or did i use it all you gave him his time right yes yes ok so this is just my time and thank you on our ads as i won't get to speak again i would stand on our brief i would ask the court to affirm the district court and i also would ask the court to grant our rule thirty eight motion that's pending thank you thank you very because perjury of course is defined by statute and it seems to me that perjury must be evidence by willful intent to provide false testimony there's been no finding by the court here on that issue there's been no finding by the court any perjury issue all we had was claims in that occupants but we don't have any as stablished perjury alone with perjury is it's almost companion issue in this case that there's a fraud on the court the extremely high standard for fraud on the court there's no record here and there's no finding of any fraud on the court i submit to the court there's no basis for finding a fraud in the court and you your honor i would just like to address the notice issue again because that's an important issue for the that you've brought up as mr also stated at every stage stage i raised the issue of improper purpose for as harassment it's in the first paragraph i believe of of both rule of emotions and i also believe that that is part of the ruhleben even though they keep saying that the rule of it only involves the damages in the access i believe that because i raise that in the rule of a motion that it was a rule of has his client brought another case against my client and they list him as the defense is a witness so he leaves those facts out that's why he gets a piece thinking you got a subpoena in this case because he listened self as a witness i have to do what i do the difficulty with this case among others mr stabenow from my personal perspective is that both sides are saying all sorts of things about the other but there are no findings from the district court as to a fair number of those things and so when they say you did x and you say they did why they are just allegations because the district court didn't have to resolve them in your honor is a lot of it is actually his admissions in his declaration is it good faith your honor is a good faith for a plane of to say yeah i had a strategy to attack we had a strategy to attack the council miss meisters said i said that orally but in fact i put it in an email but they never produce an email said email i'd love to see that email that you sent an email they sent an e mail saying they're going to attack the council over here and you say this is been a very heated yet because i've been attacked in obviously i follow the rule of ns but i don't go out tech and some of personally i'm attacking what they're doing here i'm not going back to where they should have been admitted to law school or not which is what they've done to me ok i'm just what they've done in this case and he admitted in a declaration that he sent an email and you have yet to see that email was never logs privileged and we have yet to see it that i don't believe is good faith and so you know he's had five attorneys in this lawsuit five attorneys in this lawsuit so he brought the team of the worst medical team a tree to see prompts he was going to you know the email i would just bring up the email that he's talking about my client printed out before they even had a falling out she knew they were in a falling out and the phone access issue there is a decision right now this decision in this case basically says your honor that if google if you have a token on your phone that google sets up where they're going to automatically send e mails to your phone you can violate the ca just by having that on your phone that is not you accessing google that's what was going on here my kind created the account so the token was put on my client's phone when she created the account and the emails continued to come to that count even though he was changing ordinary passwords google said in theirs in their on their website ordinary passwords will not revoke that token and it wasn't oct twenty ninth that ron and i figure that out he goes oh i got to remove that and that's when her set her phone burst said you need a new password how is someone going to violate the ca when they've never even taken any action all they did was a stuff just kept coming on their phone and this i think that this court should address that issue because that's that people are to be using this opinion to go after people just because even though they haven't done anything just because they have emails going on their phone because again this is ca was created that store communications act was created because they didn't want people to break in like in the warehouses so you can't go hack into google but it's different when you are is it up so that i understand where you're coming from but the merits of this case is not before us there at least not directly well your honor you're asking us to go out and decide an unsettled issue of law in the circuit when the merits of this case have been long closed we're just dealing with a fee issue now sanctions issue is one of the issues which is whether or not she was accessing in it's in the opinion it's in there it's in the report it's in the district court's decision is being read it's going to be relied on and you know at this point your honor there's this trick or didn't say definitively anything on that issue right it just said that there are cases holding that that is fission access i think the district court got that wrong because the district court what they do those cases are saying is that you can use of phone to access g mail and to hack into gene and you can use a computer to do so to you know mr stabenow but you might be on stronger footing in asking us to address that pure issue of law if the district court had is right and you can impose liability based on that sort of access but the district court didn't say that what the district court said is that there is some law that supports that proposition and as a result the allegation was legally and factually supportable it didn't take a stand one way or another on that yet is true your honor ok but he did cite those cases the only thing is i cited the cases say that basically there's a footnote in because a case which says you know here's a bunch of cases they say you can't access in your own phone is not accessing a facility that's what the case law was routine routinely held and i cited that in in my brief the you know the fact is right honor you have a device a plaintiff who is basically it he he admitted he was going to do this as a personal vendetta would you say it's proper or not i don't think it is but the changes in the allegations  all the facts in their totality in their totality believe at least warrant sanction against the plaintiff himself to change it for him to say yeah i haven't we we think we understand your your position and we've taken you over your time this was i'm going to so much for the extra time your honor thank you thank you both or all three of you