[00:00:04] Speaker ?:
and.

[00:01:00] Speaker 06:
Thank you, Your Honors.

[00:01:01] Speaker 06:
May it please the Court, Jonathan Franklin for the Republic of Kazakhstan.

[00:01:05] Speaker 06:
This is not a case that could be resolved on a motion to dismiss.

[00:01:11] Speaker 06:
When all of the factual allegations of the complaint are taken as true and read in the light most favorable to Kazakhstan, they allege that the studies for more than 10 years engaged in a multifaceted fraudulent, series of fraudulent, related fraudulent schemes

[00:01:27] Speaker 06:
most of which had nothing to do with litigation or arbitration.

[00:01:33] Speaker 06:
The complaint alleged that the studies engaged in these frauds in many different ways and targeted many different actual and prospective victims, including U.S.

[00:01:43] Speaker 06:
investors, the U.S.

[00:01:45] Speaker 06:
trustee, bidders on assets, many of whom were in the United States, and the study's own auditor, KPMG.

[00:01:53] Speaker 06:
Who are the U.S.

[00:01:54] Speaker 06:
investors?

[00:01:55] Speaker 06:
So this was in the original

[00:01:58] Speaker 06:
circular for the investing.

[00:02:01] Speaker 06:
This was in 2006.

[00:02:04] Speaker 06:
Investors in what?

[00:02:07] Speaker 06:
This is investors in the Stadi's operations in Kazakhstan, which included this plant that's at issue here.

[00:02:14] Speaker 06:
In what form was the investment?

[00:02:16] Speaker 06:
The form was a circular under... In what form was the actual investment?

[00:02:20] Speaker 04:
A limited partnership or what?

[00:02:22] Speaker 06:
Well, the investment was raised through a company called Tristan Oil Limited.

[00:02:26] Speaker 06:
And that's alleged in the complaint at pages 18 to 19 of the joint appendix.

[00:02:31] Speaker 04:
So these are investors in that company?

[00:02:33] Speaker 06:
In that company, which was owned by the Stadis.

[00:02:35] Speaker 06:
It was raising money for the Stadis operations in Kazakhstan, including the plant in question.

[00:02:42] Speaker 06:
And these were US investors.

[00:02:43] Speaker 06:
There was a circular that was issued in the US.

[00:02:47] Speaker 04:
Are they investors in that company?

[00:02:49] Speaker 04:
The investors.

[00:02:50] Speaker 04:
People you're talking about being injured.

[00:02:52] Speaker 04:
It's a fact question.

[00:02:52] Speaker 04:
Yes.

[00:02:53] Speaker 04:
Are they investors in that company?

[00:02:55] Speaker 06:
I believe that they were investors in that.

[00:02:57] Speaker 06:
They were the indenture that was raised through Wells Fargo as the trustee.

[00:03:02] Speaker 04:
Why aren't they excluded as a consequence of our Western Associates case, which says that limited partners, shareholders, et cetera, are indirect, not direct victims.

[00:03:12] Speaker 06:
Because they are not connected with Kazakhstan.

[00:03:16] Speaker 06:
So that was a case involving a single discrete injury to a single group of

[00:03:22] Speaker 06:
investors, in that case, limited partners, and the court said, well, for purposes of looking at a pattern in that case, we're going to consider them all together.

[00:03:31] Speaker 06:
These investors had nothing to do with Kazakhstan.

[00:03:33] Speaker 06:
This was years before the arbitration that we were victimized by.

[00:03:38] Speaker 04:
It will seem like two different questions.

[00:03:40] Speaker 04:
The question is shareholders of a company, members of a limited partnership who are injured in some way, are indirect according to our case.

[00:03:51] Speaker 04:
The direct is the entity.

[00:03:53] Speaker 04:
Why is that not the case here?

[00:03:55] Speaker 06:
Yes, we're directly injured.

[00:03:57] Speaker 06:
But the reason that those victims are important, I think, is for the second part of the analysis, which I can get to now, which is the pattern analysis.

[00:04:07] Speaker 04:
That's the part I'm asking about.

[00:04:08] Speaker 04:
I'm talking about the continuity requirement and the number of victims.

[00:04:12] Speaker 04:
And the Western Associates would seem to exclude those as individuals.

[00:04:19] Speaker 06:
I don't think so, Your Honor.

[00:04:20] Speaker 06:
I think what Western Associates was saying is that where the limited partners are simply all together with the party that sued and it's the same injury inflicted on the same group, in that case it was just a standard fraudulent accounting and the limited partners were all victimized together by the same act.

[00:04:41] Speaker 06:
This is different.

[00:04:42] Speaker 06:
These investors were victimized by entirely different acts than victimized Kazakhstan in years and years before.

[00:04:48] Speaker 06:
They were victimized because the Kazakhs, the studies circulated offerings in the United States that made false and fraudulent statements.

[00:04:57] Speaker 06:
They had false and fraudulent financial reports.

[00:05:00] Speaker 06:
And as we would show, again, as we said in our complaint, if allowed to amend the complaint, their auditor, KPMG, recently withdrew

[00:05:09] Speaker 06:
all of its audited statements for the studies during that period, which is an extraordinary thing to do.

[00:05:15] Speaker 06:
They are definitely not the same as in Western Associates.

[00:05:18] Speaker 06:
In fact, it's the exact opposite.

[00:05:20] Speaker 06:
What we have here is a string of different fraudulent schemes.

[00:05:25] Speaker 06:
Now, they're related as they have to be for purposes of H.J.'

[00:05:29] Speaker 06:
's requirement.

[00:05:30] Speaker 06:
The pattern has to be both continuous and related.

[00:05:33] Speaker 06:
They're absolutely related, but they're different victims

[00:05:37] Speaker 06:
And they're victimized in different ways.

[00:05:39] Speaker 06:
And it's not just a question.

[00:05:42] Speaker 01:
Are there damages claimed other than the legal fees?

[00:05:45] Speaker 06:
The damages are the legal costs that we incurred as a result of the predicate acts that proximately injured us.

[00:05:54] Speaker 06:
But it is, I think, black letter law that the plaintiff does not need to be injured by every single predicate act or part of the fraudulent scheme in order to state a pattern.

[00:06:05] Speaker 06:
In fact, that's

[00:06:06] Speaker 06:
normally going to be the case.

[00:06:07] Speaker 06:
If you have a fraudulent racketeering operation, it's going to be victimizing many different people, and that's going to be the pattern.

[00:06:15] Speaker 06:
But then the person that sues is going to be suing based on the acts that victimized it.

[00:06:21] Speaker 06:
And so the first mistake that the district court made, I will get to pattern two, but the first mistake was simply just to say that litigation activities are themselves not actionable under RICO.

[00:06:33] Speaker 06:
That's wrong for two reasons.

[00:06:35] Speaker 06:
It's wrong both because the statute doesn't have any exception in it for predicate acts that happen to occur during litigation.

[00:06:43] Speaker 06:
And it's also wrong because as even the district court recognized, every court that has adopted some form of that exception, which has not included this court, has held that it does not apply, whereas here the litigation activities are part of a broader fraudulent scheme.

[00:07:02] Speaker 06:
The district court simply, I think, effectively pretended as if the first 134 paragraphs of our complaint just didn't exist.

[00:07:12] Speaker 06:
That's where we allege the fraud outside of the litigation, and it's important to establish the pattern, and that is the pattern that we're alleging here.

[00:07:21] Speaker 06:
The district court... Can I ask you about that?

[00:07:23] Speaker 05:
Your complaint is very precise in...

[00:07:28] Speaker 05:
identifying what the pattern is, right?

[00:07:32] Speaker 05:
And it starts on page 73 of the appendix, and it starts with the arbitration.

[00:07:42] Speaker 05:
It's all, it's the arbitration, it's the Swedish annulment proceeding, and then it is enforcement and 1782 proceedings in the United States.

[00:07:58] Speaker 06:
Well, we have alleged, if you look at page 98 of the Joint Appendix, paragraph 283, we talk about the pattern of racketeering is described in paragraphs 1 through 279 of the complaint.

[00:08:13] Speaker 06:
We are including the entire complaint in the pattern of racketeering.

[00:08:17] Speaker 06:
Sorry, where are you?

[00:08:17] Speaker 06:
I'm sorry, I'm at page 98 of the Joint Appendix, paragraph 283.

[00:08:23] Speaker 06:
And what we're saying there is it's the entire complaint that constitutes the pattern of racketeering.

[00:08:28] Speaker 05:
That's your conspiracy count.

[00:08:31] Speaker 05:
But your substantive count is the language is from JA 81 to about 93.

[00:08:45] Speaker 05:
And it's very granular, and it's all about

[00:08:49] Speaker 06:
litigation?

[00:08:50] Speaker 06:
First of all, I would say, and we made this point, that the complaints are not required, and the court has never required the complaints to plead legal conclusions.

[00:08:58] Speaker 06:
And we made clear to the district court that the entire scheme included both the litigation activities and extended backwards to the other non-litigation activities.

[00:09:10] Speaker 06:
And in this case, I would actually point the court to its own holding in Philip Morris.

[00:09:15] Speaker 06:
And Philip Morris

[00:09:16] Speaker 06:
the court found a pattern of racketeering activity against a single defendant based on only four letters, mail fraud, four letters that were sent, none of which itself was fraudulent or false.

[00:09:30] Speaker 06:
They were sent by lawyers to individuals threatening litigation.

[00:09:35] Speaker 06:
And the court found that that alone stated a pattern of racketeering activity because the letters were sent

[00:09:44] Speaker 06:
in furtherance of a broader scheme.

[00:09:47] Speaker 06:
And the scheme itself did not involve any other predicate acts committed by that defendant.

[00:09:54] Speaker 06:
I think we have alleged far more than that in this case.

[00:09:57] Speaker 05:
I think Philip Morris is effectively... More than the United States alleged in the government tobacco case?

[00:10:04] Speaker 06:
Far more predicate acts that affected us.

[00:10:07] Speaker 06:
But they're... That's a pretty big case.

[00:10:10] Speaker 06:
What's that?

[00:10:10] Speaker 06:
That was a pretty big case.

[00:10:12] Speaker 06:
It was a big case, Your Honor, but it had a single goal.

[00:10:15] Speaker 06:
The goal was to defraud the American public about the dangers of smoking.

[00:10:20] Speaker 06:
In this case, yes, there was at a generally broader level the goal to defraud both the investors, the bidders, and ultimately Kazakhstan.

[00:10:31] Speaker 06:
And we have had in London a finding that there was a prima facie case that fraud was committed.

[00:10:37] Speaker 06:
We won that case because the Kazakhstan, the studies dismissed it.

[00:10:41] Speaker 06:
Part of our allegations in this case are that the costs incurred in connection with that by the U.S.

[00:10:46] Speaker 06:
lawyers.

[00:10:47] Speaker 06:
Again, this is a motion to dismiss.

[00:10:49] Speaker 06:
All of the factual allegations need to be taken as true and measured against standard of the legal standard.

[00:10:56] Speaker 01:
So if there was a pleading... Although, although Mr. Franklin, you're... Franklin, I'm sorry.

[00:11:02] Speaker 01:
Yes.

[00:11:04] Speaker 01:
Allegations are, your complaint is so clear about separating out what it says is the pattern, including in an appendix.

[00:11:13] Speaker 01:
And it is, as Judge Katz's question was indicating, all about the enforcement actions, the litigation activity, not the underlying.

[00:11:27] Speaker 06:
Well, with respect, Your Honor, the first 134 pages are not.

[00:11:31] Speaker 06:
And what we did is we listed certain predicate acts that proximately affected Kazakhstan.

[00:11:36] Speaker 06:
And those are the ones that we knew about.

[00:11:38] Speaker 06:
And those are the ones that were in connection with litigation.

[00:11:42] Speaker 06:
But in Philip Morris, there were only four predicate acts alleged, four mailings.

[00:11:48] Speaker 06:
And yet they were considered to be a pattern because they were part of a larger fraudulent scheme.

[00:11:53] Speaker 06:
And that is because, as the court said, the mail fraud statute doesn't require that the actual mailings themselves be fraudulent.

[00:12:00] Speaker 06:
It just requires that they be in connection with a scheme or artifice to defraud.

[00:12:05] Speaker 06:
And there I would say that the scheme or artifice to defraud, we have absolutely alleged, is way broader than just the litigation activities that affected us.

[00:12:16] Speaker 06:
We said that both in our complaint.

[00:12:18] Speaker 06:
We said it to the district court in our opposition to the motion to dismiss.

[00:12:23] Speaker 06:
And the court dismissed it primarily in a footnote on the ground that we didn't allege that these other acts

[00:12:30] Speaker 06:
injured us.

[00:12:32] Speaker 06:
And that's a legal error, Your Honor.

[00:12:33] Speaker 06:
That's the error that the court made.

[00:12:36] Speaker 06:
I think it was nine, maybe it was eight or nine.

[00:12:39] Speaker 06:
The court said, well, they didn't injure us.

[00:12:43] Speaker 06:
And that's not the standard.

[00:12:45] Speaker 06:
The standard isn't that every predicate act or every part of the fraudulent scheme injured the plaintiff who is suing.

[00:12:52] Speaker 06:
And that's, I think, where the key mistake comes in, maybe some of the confusion that I'm hearing today.

[00:12:57] Speaker 01:
Mr. Franklin, if there were no fraud in inflating the value of the LPG plant, if there were no fraud there, then all the rest of it goes away.

[00:13:11] Speaker 06:
If there were no fraud in inflating the value of the plant.

[00:13:15] Speaker 01:
Everything else is you're continuing to act on, intensify, try to profit off of, try to make good on that fraud.

[00:13:26] Speaker 06:
There was fraud in connection with the failure to disclose the related party transactions.

[00:13:34] Speaker 01:
One would not have needed to do that if one were never harmed, or I guess that would

[00:13:40] Speaker 06:
Well, no, I think that the investors would want to know, as the indenture requires, whether or not there were related party transactions, and those were not reported.

[00:13:50] Speaker 06:
They needed to know that all of the financial statements were correct, and we have said that they're not.

[00:13:56] Speaker 06:
So yes, I mean, I think that's a major part of it, but I don't think it's the entire case.

[00:14:01] Speaker 06:
But it certainly is the case, and we have plausibly and properly alleged that there was that fraud that occurred.

[00:14:10] Speaker 06:
I see I'm out of my rebuttal time, but I would, if the court has further questions, or I would like... It's not, thank you.

[00:14:18] Speaker 04:
We'll save your time.

[00:14:19] Speaker 06:
Okay.

[00:14:29] Speaker 02:
Good morning, Your Honors.

[00:14:30] Speaker 02:
May it please the court, I'm James Berger of King's Balling LLP here for the Defendants Appellees, who I will refer to as the Stoddy Group for convenience sake.

[00:14:41] Speaker 02:
Your Honors, Judge Katz, as you made reference, and I think Judge Ballard, you did as well, about how all of what you read in the complaint is really about the arbitration and the follow-on litigation matters.

[00:14:55] Speaker 02:
And that's the way we see this case.

[00:14:56] Speaker 02:
We've seen an invitation made somewhat after the fact here for the Court to go through the complaint in this case and just find things that might be other frauds that can be characterized as something other than litigation.

[00:15:08] Speaker 02:
But we think the District Court

[00:15:10] Speaker 02:
approach this case exactly the right way and looked at it, made the correct rulings, and we would ask this court to affirm them.

[00:15:18] Speaker 02:
The RICO claims in this case have at least three fatal defects in them.

[00:15:23] Speaker 02:
First, to say that the claims generally seek a ruling that focuses on the prosecution and the attempted enforcement of an arbitration award.

[00:15:34] Speaker 02:
It focuses on one aspect of that arbitration.

[00:15:37] Speaker 02:
It focuses on a single

[00:15:40] Speaker 02:
appropriated asset, the LPG plan, which constituted about half of the award.

[00:15:45] Speaker 02:
This isn't as though these actions that were alleged by the Republic created an entirely new liability.

[00:15:52] Speaker 02:
They did not.

[00:15:53] Speaker 02:
My client's assets in Kazakhstan were all confiscated and expropriated.

[00:15:58] Speaker 02:
The LPG plan represents one of those.

[00:16:01] Speaker 02:
And the Rico case that has been presented in response to the confirmation of this arbitration award

[00:16:10] Speaker 02:
is based on a legal theory that no US court has ever credited.

[00:16:14] Speaker 02:
And it's one that if this court were to accept, you would essentially be giving an invitation to everybody who ever loses an arbitration or a litigation to bring a RICO claim, so long as there are any disputed factual issues set forth in a litigation paper.

[00:16:30] Speaker 02:
that was transmitted by mail or by wire.

[00:16:33] Speaker 05:
That's a great policy argument, but where do we anchor it in the text of RICO?

[00:16:41] Speaker 02:
I would direct the court not to look so much at the text of RICO, but to look at the text of the mail fraud statute.

[00:16:47] Speaker 02:
I think the courts that have addressed this most effectively have said, this isn't mail fraud.

[00:16:53] Speaker 02:
It may be malicious prosecution.

[00:16:55] Speaker 02:
It may be an abusive process.

[00:16:57] Speaker 02:
But it's not mail fraud.

[00:16:59] Speaker 02:
And if it were,

[00:17:01] Speaker 02:
Just about every litigation that happens in the United States where there are disputes over facts would give rise to a potential recoaction.

[00:17:07] Speaker 02:
You can always plead that your adversary lied about something in a litigation paper, and he emailed it to the court.

[00:17:15] Speaker 01:
Mr. Berger, in a case in which, just hypothetically, if there were fraud discovered after an arbitration had occurred, is there any recourse either under

[00:17:28] Speaker 01:
the law-governing enforcement of an arbitration or otherwise does that person have any recourse or is the finality and the inability to look under the hood that is the hallmark of arbitration just to throw an immunity over that?

[00:17:49] Speaker 02:
It's not an immunity, Judge Pallardi.

[00:17:50] Speaker 02:
There are definitely things that a party who feels aggrieved by

[00:17:54] Speaker 02:
any sort of misbehavior in an arbitration can do.

[00:17:56] Speaker 02:
The New York Convention sets up defenses.

[00:17:59] Speaker 02:
There is a public policy defense which allows people to bring arguments like this up.

[00:18:04] Speaker 02:
There's Rule 60, which is available to any litigant here in the United States.

[00:18:08] Speaker 02:
If they feel as though an award was confirmed wrongfully in the United States, Rule 60 is a fairly broad reservoir of relief that a party can use.

[00:18:17] Speaker 01:
A civil Rule 60?

[00:18:20] Speaker 02:
Rule 60B.

[00:18:21] Speaker 02:
Relief from judgment.

[00:18:22] Speaker 01:
Well, after something's been enforced?

[00:18:26] Speaker 01:
That seems like even weaker than substantively in the enforcement action itself, which you're saying is unavailable.

[00:18:31] Speaker 02:
I'm saying that RICO is unavailable in this case, and that's been our position throughout, but we have not said, and goodness knows, we've had to litigate a lot of cases in a lot of different places where these issues have been raised, and I think it's important

[00:18:47] Speaker 02:
in addressing Your Honor's question about that, the fact that these issues have been raised.

[00:18:50] Speaker 02:
They have been litigated.

[00:18:51] Speaker 02:
They have been all of the evidence that was sought to be relied upon in this case has been presented to the courts in Sweden who looked at that evidence and said, no, thank you.

[00:19:02] Speaker 02:
We're not interested.

[00:19:03] Speaker 01:
Why did you discontinue the action in the UK?

[00:19:07] Speaker 02:
Your Honor, my clients made a determination to discontinue that action.

[00:19:13] Speaker 02:
What happened in the UK courts is a matter of record.

[00:19:16] Speaker 02:
I don't know that it would be entirely appropriate for me to disclose those deliberations to the court.

[00:19:22] Speaker 02:
They're privileged.

[00:19:23] Speaker 02:
So in terms of why, we have the right to do it, and we did.

[00:19:29] Speaker 02:
Statements were made on the record.

[00:19:30] Speaker 02:
The English judge asked questions about them.

[00:19:33] Speaker 02:
I can't really quote them here because I just don't remember what exactly got said, what was said.

[00:19:37] Speaker 02:
But there are reasons that have been given.

[00:19:41] Speaker 02:
that are on the record.

[00:19:43] Speaker 02:
I don't think I should really talk about my client's deliberations about that here in an open courtroom.

[00:19:47] Speaker 01:
No, I mean, the point is you were asserting that everything's come out, and some of what's come out, some tribunals have thought is a matter of concern.

[00:19:58] Speaker 02:
They have.

[00:19:59] Speaker 02:
And other tribunals have looked at it and said that it's not.

[00:20:02] Speaker 02:
And I think it's an important thing for us to bear in mind that the U.S.

[00:20:06] Speaker 02:
District Court for the District of Columbia looked at all this and said it wasn't interested.

[00:20:11] Speaker 02:
That case then came before this court.

[00:20:12] Speaker 02:
Judge Cassis was on the panel when it came before this court.

[00:20:15] Speaker 02:
And that judgment was affirmed.

[00:20:17] Speaker 02:
There was a petition for certiorari, which was denied.

[00:20:20] Speaker 02:
This has all been hashed through.

[00:20:22] Speaker 02:
This has all been litigated.

[00:20:24] Speaker 02:
There have now been, and we made a 28-J submission to the court in advance of the argument today.

[00:20:29] Speaker 02:
There have been judgments in Belgium.

[00:20:31] Speaker 02:
There's now been a judgment in Luxembourg.

[00:20:33] Speaker 02:
There should be a judgment coming fairly soon in Holland.

[00:20:36] Speaker 02:
Courts have looked at these allegations.

[00:20:38] Speaker 02:
They've looked at them very closely.

[00:20:40] Speaker 02:
And with the exception of the one court in England that looked at it and said, we see prima facie evidence here.

[00:20:46] Speaker 02:
They didn't enter a judgment in the republic's favor.

[00:20:49] Speaker 02:
They said, we see something here that we want to take a further look at.

[00:20:52] Speaker 02:
The decision was made to discontinue that action.

[00:20:55] Speaker 02:
But the other actions around the world have continued.

[00:20:57] Speaker 02:
And they've continued on to judgment, particularly in Sweden.

[00:21:01] Speaker 02:
where the Swedish courts had supervisory jurisdiction over this award.

[00:21:05] Speaker 02:
This is their case.

[00:21:07] Speaker 02:
They looked at it all and they said, this is all okay with us.

[00:21:09] Speaker 01:
When you say it's all been hashed out, I mean, I understand that actually enforcing an arbitration means hashing out nothing of the underlying allegations.

[00:21:20] Speaker 01:
And when you force an arbitration award by its nature, it's quite pro forma.

[00:21:24] Speaker 01:
So the only place that anything was hashed out

[00:21:31] Speaker 01:
conceivably was in the Svea court where Kazakhstan tried to get their attention on information that it didn't have at the time of the arbitration.

[00:21:44] Speaker 02:
So under the international framework, Judge Pollard, that's how it gets hashed out.

[00:21:48] Speaker 02:
And there is a supervisory judicial function in the seat of the jurisdiction where the arbitration took place.

[00:21:56] Speaker 02:
All of this evidence was put before the Svea court.

[00:21:59] Speaker 02:
They saw it all.

[00:22:00] Speaker 02:
They heard about it.

[00:22:00] Speaker 02:
There was a multi-day hearing that they conducted on this.

[00:22:04] Speaker 02:
There was nothing pro forma about it.

[00:22:06] Speaker 02:
It was a lengthy hearing involving an airing of all of these allegations.

[00:22:11] Speaker 02:
And at the end of the day, they said, the award is valid.

[00:22:15] Speaker 02:
So somewhere in this entire odyssey, and it has become somewhat of an odyssey, there has to be some finality.

[00:22:23] Speaker 02:
These issues have been raised.

[00:22:24] Speaker 02:
They have been talked about.

[00:22:25] Speaker 02:
They have been litigated extensively.

[00:22:28] Speaker 02:
And they've been litigated in this jurisdiction in front of a district judge of the district court in this district, before this court, in fact.

[00:22:36] Speaker 02:
And at some point, it's got to be over.

[00:22:37] Speaker 05:
The way law normally achieves finality is through preclusion doctrines.

[00:22:48] Speaker 05:
So why shouldn't we, with regard to all of your arguments about what happened in this case and about

[00:22:56] Speaker 05:
the dangers of every RICO case giving, sorry, every underlying case giving rise to a RICO follow-up, why don't we handle that by simply asking whether there is any award or judgment here entitled to preclusive effect rather than trying to create this litigation exception in the mail fraud statute, which I just don't see.

[00:23:24] Speaker 02:
Your Honor, I think that's a very good idea, and I would have gotten to that point in my argument.

[00:23:29] Speaker 02:
I think there's very clearly, if the court looks at the proceedings that occurred.

[00:23:35] Speaker 05:
You've got the arbitration award itself.

[00:23:40] Speaker 05:
You have the judgment.

[00:23:42] Speaker 05:
in Sweden, you have the district court enforcement decision here.

[00:23:48] Speaker 05:
Which of those gets preclusive effect and is it claim preclusion or issue preclusion?

[00:23:54] Speaker 02:
It's claim preclusion and I would say that it's, I don't think you have to choose just one.

[00:23:58] Speaker 02:
I think the fact that there are multiple options there is actually something that weighs very heavily in terms of,

[00:24:05] Speaker 02:
showing the merit of what your honor is suggesting.

[00:24:07] Speaker 05:
I would say the Swedish court.

[00:24:09] Speaker 05:
OK, so where was the RICO claim?

[00:24:11] Speaker 05:
Where could the RICO claim have been litigated?

[00:24:16] Speaker 05:
Not in Sweden, right?

[00:24:18] Speaker 02:
Well, you can't litigate a US RICO claim in Sweden.

[00:24:20] Speaker 02:
But if you look at claim preclusion as sort of a subject matter, a transactional type of doctrine, which is the way we understand it and the way we understand the law in this circuit and in DC to define it, it's the same allegations.

[00:24:34] Speaker 02:
The same things were brought up in Sweden.

[00:24:36] Speaker 05:
Fair enough.

[00:24:38] Speaker 05:
Fair enough.

[00:24:39] Speaker 05:
But that starts to sound a little bit more like an argument for issue preclusion, which is that in the Swedish court, the question whether the award was procured by fraud was teed up, and that should bar the litigation here.

[00:24:59] Speaker 01:
And it would have to be issue preclusion, wouldn't it?

[00:25:01] Speaker 01:
I'm sorry.

[00:25:02] Speaker 05:
No, but you didn't raise issue preclusion.

[00:25:05] Speaker 02:
No, and I still think it's with respect to your honor and the suggestion that it's not, I do think it is claim preclusion.

[00:25:12] Speaker 02:
The claim here, the relief being sought is relief from this award.

[00:25:17] Speaker 05:
I mean, you're right about... Probably defined.

[00:25:19] Speaker 02:
That's what they're seeking, right?

[00:25:20] Speaker 05:
You're right about the transaction or occurrence point, but there is an exception to that for claim preclusion where the cause of action at issue could not have been raised.

[00:25:35] Speaker 02:
So I don't, oh, Judge Flores.

[00:25:38] Speaker 01:
And conduct subsequent to is part of their pattern.

[00:25:41] Speaker 01:
Alleged pattern is conduct that was.

[00:25:44] Speaker 02:
Well, I can address the pattern issue, and I think it's important to focus on, as Your Honors did during my colleagues' argument, this is all about the same thing.

[00:25:58] Speaker 02:
And this is all about the LPG plant.

[00:26:01] Speaker 02:
You can make the timeline as long as you want, say that, well, they did this and they did that and they did the other thing.

[00:26:06] Speaker 02:
But if you look at the complaint, it's very, very clear that the allegations have to do with the valuation of a single asset that was expropriated by the Kazakh government and how the claims about the value of that asset were set forth during arbitration.

[00:26:21] Speaker 02:
And then to say that every time the liability number was mentioned,

[00:26:26] Speaker 02:
in a subsequent pleading, whether it be under section 1782 or in an enforcement proceeding in the US or elsewhere, that that's a new act of mail fraud.

[00:26:35] Speaker 02:
It's the same thing being done over and over and over again by the same people with respect to the same potential victim.

[00:26:42] Speaker 05:
Sorry, we're talking about preclusion.

[00:26:44] Speaker 02:
I just wanted to talk about the pattern issue because it sort of came up in the course of that question.

[00:26:48] Speaker 02:
But when we talk about preclusion, I do think that if you look at the arguments made broadly enough, and there is

[00:26:56] Speaker 02:
sort of a, there are some fairly broad issues that are before the court today.

[00:27:02] Speaker 02:
Should this arbitration award be enforced?

[00:27:05] Speaker 02:
This court already made that decision and so now we're confronted with another action that says, well even if it is, it should be this RICO case which is in effect a clawback.

[00:27:15] Speaker 02:
That's really what it looks like.

[00:27:17] Speaker 02:
And so we would say that transactionally, it is the same thing.

[00:27:20] Speaker 02:
You are fighting about the same award that we fought about here a year ago.

[00:27:23] Speaker 01:
Well, Mr. Berger, what are we to make, for example, of allegations about conflicting claims of value of the LPG plant in the veto arbitrations and the SCC arbitrations?

[00:27:37] Speaker 01:
There are different methodologies, and one hikes up and the other hikes down.

[00:27:42] Speaker 02:
I don't think that's before the court today, Your Honor.

[00:27:45] Speaker 01:
It's in the complaint.

[00:27:47] Speaker 01:
They talk about the real net value of the LPG plant versus the reputed, reported value in the Kazakh book.

[00:27:57] Speaker 01:
They're pointing to that there's different, that your clients are speaking out of different sides of their mouths, depending on what serves them.

[00:28:06] Speaker 01:
And to the extent that that's alleged, if we think there's something inadequate about this complaint,

[00:28:14] Speaker 01:
allow Kazakhstan to re-plead to make it clear?

[00:28:18] Speaker 02:
Well, that wasn't alleged.

[00:28:19] Speaker 02:
It's one of the predicate acts.

[00:28:20] Speaker 02:
It's all background coloring material.

[00:28:22] Speaker 02:
I don't mean to discount it.

[00:28:23] Speaker 02:
There's a lot of stuff that's in there.

[00:28:24] Speaker 02:
But when the court gets to the point where they're saying, here are the mail frauds.

[00:28:28] Speaker 02:
Boom, boom, boom, boom, boom.

[00:28:29] Speaker 02:
They list them.

[00:28:29] Speaker 02:
There's a table in the middle of the complaint that says, these are the mail and wire frauds.

[00:28:33] Speaker 02:
They're all litigation papers.

[00:28:35] Speaker 01:
Well, if we were to just set aside the litigation exception, which I haven't heard any textual response to Kazakhstan's argument.

[00:28:43] Speaker 01:
It's not in the text.

[00:28:44] Speaker 01:
We're bound by the Supreme Court precedent and our own precedent that says we don't create non-textual exceptions to RICO.

[00:28:52] Speaker 01:
So if we're just looking at the pattern question and their allegations of a pattern are premised centrally, I think as you acknowledge, on this question about whether the LPG pricing was fraudulent or not,

[00:29:07] Speaker 01:
It seems like that's instinct in every single one of the predicate acts that they allege that there's a, that that is a fraud.

[00:29:17] Speaker 01:
And they've alleged things like what I mentioned in paragraph 13 and in paragraph 37 of the complaint that your clients were saying one thing, you know, to one party where it suited them and another thing to another or to one arbitral forum and to another arbitral forum.

[00:29:35] Speaker 01:
What are we to make of those allegations that would seem to be prima facie allegations of fraud?

[00:29:40] Speaker 02:
So I would suggest, Your Honor, and I see my time has elapsed.

[00:29:44] Speaker 02:
I'll be quick about this, but what I would say in response to that is that in a 110-page complaint or however long it was that is pled out that granularly, where you actually do make

[00:30:01] Speaker 02:
arguments about the theories and, you know, here's the mail fraud, here's the wire fraud, here's the money laundering, to throw in all this other stuff and say, well, you know what, if we didn't say it the right way, we're going to leave it up to you to find fraud.

[00:30:13] Speaker 02:
That's not the court's job.

[00:30:13] Speaker 02:
I don't think.

[00:30:14] Speaker 01:
Well, there's no question it was central to their theory that the studies were playing fast and loose with the value of the LPG plan.

[00:30:25] Speaker 01:
I mean, that's not hidden in their complaint.

[00:30:28] Speaker 01:
That's central.

[00:30:29] Speaker 02:
So then they need to allege that those acts are indictable under the mail fraud or the wire fraud statute.

[00:30:35] Speaker 02:
And they haven't done that.

[00:30:37] Speaker 02:
That's what they're required to allege in a RICO case.

[00:30:40] Speaker 02:
And they did not allege that.

[00:30:41] Speaker 02:
They allege that the sending of litigation papers to courts and tribunals around the world constituted mail and or wire fraud.

[00:30:50] Speaker 02:
They didn't say that any of that stuff was mail or wire fraud.

[00:30:53] Speaker 02:
They're asking you to find it.

[00:30:54] Speaker 02:
They're asking you to say, well, sounds pretty bad.

[00:30:58] Speaker 02:
So it's probably mail or wire fraud.

[00:31:00] Speaker 02:
But those are statutes with technical requirements in them, and those things were not alleged in the complaint.

[00:31:09] Speaker 05:
Assume, for the sake of argument, we read the pattern allegations as encompassing all the background stuff at the beginning.

[00:31:20] Speaker 05:
Pattern or no pattern?

[00:31:21] Speaker 05:
No, it's not a pattern.

[00:31:22] Speaker 05:
It's a single thing.

[00:31:24] Speaker 05:
It's a linear set of transactions.

[00:31:28] Speaker 05:
Judge Pillard's right.

[00:31:29] Speaker 05:
It's all about inflating the value of the plant.

[00:31:33] Speaker 05:
But on my assumption, you at least would have different victims, right?

[00:31:40] Speaker 05:
U.S.

[00:31:41] Speaker 05:
investors, the bidders, when they tried to sell the plant.

[00:31:47] Speaker 02:
I mean, the way the case is played, Judge Katz, I just don't see it.

[00:31:51] Speaker 02:
What I see is a party that lost in an arbitration,

[00:31:55] Speaker 02:
has a big damage award that's been ordered to pay by now multiple national courts and has pled out a case saying that not even the underlying liability, but the fact that they have to defend these enforcement actions because they won't pay a judgment that now several national courts have imposed against them.

[00:32:12] Speaker 02:
There's an approximate cause break right there.

[00:32:14] Speaker 02:
If those are the damages,

[00:32:16] Speaker 02:
The reason they've incurred those damages is because they're ignoring court orders.

[00:32:19] Speaker 02:
They're refusing to pay lawful court judgments that have been rendered in the ordinary course of judicial proceedings.

[00:32:26] Speaker 02:
So it's good to keep sight of that also, but the victim, okay, they say, well, they defrauded a US investor and they defrauded this person and that person.

[00:32:36] Speaker 02:
At the end of the day, the complaint makes very clear that the harm here is the fact that they're being required to pay legal fees

[00:32:44] Speaker 02:
to defend themselves against enforcement proceedings on a judgment that is awful.

[00:32:50] Speaker 05:
Well, but the pattern can be broader than the line of causation to the injured plaintiff.

[00:33:00] Speaker 02:
I understand, and I was attentive when you were asking questions of my colleague during his presentation today, but I don't want

[00:33:11] Speaker 02:
When you look at this case, and I think Judge Katz, as you said it before, when you read the complaint, it's all about one thing.

[00:33:18] Speaker 02:
It's about the LPG plan.

[00:33:19] Speaker 02:
It's about the valuation of an asset and whether or not the tribunal was misled in terms of attaching a value to that asset for purposes of then awarding damages to a party whose assets were unquestionably expropriated and whether or not there's

[00:33:36] Speaker 02:
As a result of that, a flaw in the award and the judgments that have been rendered on that award subsequently.

[00:33:42] Speaker 02:
That's what this case is all about.

[00:33:45] Speaker 02:
And when you look at Edmondson and this court's decisions and other circuits' decisions about pattern, they make clear that a linear set of transactions like this is not a pattern.

[00:34:02] Speaker 03:
Okay, no further questions?

[00:34:03] Speaker 03:
We'll hear from them.

[00:34:05] Speaker 03:
Okay.

[00:34:05] Speaker 03:
I thank the court for its attention.

[00:34:06] Speaker 03:
Thank you very much.

[00:34:11] Speaker 04:
We'll round it up to two.

[00:34:13] Speaker 06:
I'm sorry, what did you say?

[00:34:14] Speaker 04:
We'll round it up to two minutes.

[00:34:15] Speaker 04:
Thank you so much, Your Honor.

[00:34:17] Speaker 06:
Just a few points, Your Honor.

[00:34:18] Speaker 06:
There was some discussion about what has been hashed out.

[00:34:21] Speaker 06:
Nothing has been hashed out.

[00:34:22] Speaker 04:
Can I ask about this discussion you've been having with the court on the question of whether litigation claims can be

[00:34:31] Speaker 04:
part of Rico and the problem of whether they're textual.

[00:34:38] Speaker 04:
So what you do, even if they're not textual, there is something that overrides the text, which is the First Amendment.

[00:34:46] Speaker 04:
And in the Noor-Pennington line of cases, professional real estate case, the Supreme Court said, I'm just trying to get the exact quote,

[00:34:55] Speaker 04:
Define sham litigation to be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits.

[00:35:05] Speaker 04:
And unless it's sham litigation, notwithstanding the words of the antitrust laws, it cannot be part of an antitrust case.

[00:35:12] Speaker 04:
So picking as a given that mere litigation is okay.

[00:35:22] Speaker 04:
If it's sham, unless it's sham litigation, it can't be part of the antitrust.

[00:35:27] Speaker 04:
It can't be part of antitrust, and therefore it can't be part of RICO.

[00:35:30] Speaker 04:
You agree with that?

[00:35:31] Speaker 06:
Well, I don't agree with the last step.

[00:35:34] Speaker 06:
First of all, the other side has not raised nor Pennington.

[00:35:37] Speaker 04:
Well, the cases that are quoted, some of them cite the sham litigation part of nor Pennington.

[00:35:45] Speaker 06:
Right, but I think fraudulent statements of litigation are not protected.

[00:35:49] Speaker 06:
They're not first.

[00:35:50] Speaker 04:
Well, it has to be objectively baseless in the sense no reasonable litigant could reasonably expect success on the merits.

[00:35:57] Speaker 04:
Now, they have gotten success on the merits on some of these.

[00:36:00] Speaker 04:
And so those would have to be excluded from your list of predicate acts.

[00:36:05] Speaker 06:
I don't think so, Your Honor, and the following is true.

[00:36:09] Speaker 06:
People can be prosecuted for the predicate acts and have been prosecuted for things that occur in litigation that are fraudulent.

[00:36:16] Speaker 06:
I don't think the Nord-Pennington doctrine is a blanket immunity for RICO predicate acts that occur during... I'm saying it's not.

[00:36:23] Speaker 04:
I'm accepting that for purposes of this argument and going to the question of it must at least be sham.

[00:36:30] Speaker 04:
It must be sham litigation, not just ordinary litigation and not just false litigation.

[00:36:36] Speaker 04:
It has to be sham litigation.

[00:36:37] Speaker 06:
If you're challenging the litigation itself, itself maybe under antitrust laws.

[00:36:42] Speaker 04:
But that's what you're doing here, right?

[00:36:43] Speaker 04:
These are underlying mail fraud or wire fraud schemes.

[00:36:47] Speaker 04:
And to be a violation of the mail fraud scheme, it has to be something that would not violate the First Amendment to make it.

[00:36:55] Speaker 06:
And we have cited cases in our brief, Your Honor, that fraudulent statements made during litigation or in connection with litigation are not immune because they are not protected by the First Amendment.

[00:37:06] Speaker 03:
So if that issue were raised on remand...

[00:37:10] Speaker 06:
So I'm sorry, I don't have the exact pages of our brief.

[00:37:13] Speaker 06:
But we did address the, when we talked about the policy rationales that some courts have used.

[00:37:19] Speaker 04:
This is not policy.

[00:37:20] Speaker 04:
This is the First Amendment.

[00:37:21] Speaker 06:
I understand that.

[00:37:22] Speaker 06:
But some of the courts have referred to the First Amendment as the policy rationale.

[00:37:26] Speaker 06:
And we addressed that in our brief.

[00:37:28] Speaker 06:
And I apologize, I don't have the page.

[00:37:31] Speaker 06:
28.

[00:37:34] Speaker 06:
So we cite Wheelan versus Abel.

[00:37:36] Speaker 06:
However broad the first amendment to the petition may be, it cannot be stretched to cover petitions based on known falsehoods.

[00:37:42] Speaker 06:
We used to discuss the Philip Morris case, which also had an argument that because it was legal in nature, it couldn't be a predicate act.

[00:37:50] Speaker 06:
Again, if they were to raise this issue, we would brief it on remand entirely.

[00:37:55] Speaker 06:
And we would, I think, show to the court that there is no norm pending for immunity here.

[00:38:02] Speaker 06:
If I might, I'm sorry, I've gone over it.

[00:38:04] Speaker 04:
Now you've got exactly, you can have the remainder of your time.

[00:38:07] Speaker 04:
I stole some of yours.

[00:38:09] Speaker 04:
Thank you, Chief Judge.

[00:38:10] Speaker 06:
Nothing's been hashed out.

[00:38:11] Speaker 06:
The closest to being hashed out, I think, was the London proceedings and Judge Pillard.

[00:38:17] Speaker 06:
It's not on the record, but I would submit it if I want, if you'd like, that the judge, they argued when they dismissed their case that it was for cost reasons.

[00:38:25] Speaker 06:
The judge said, that is incredulous.

[00:38:27] Speaker 06:
You dismissed your case because you did not want a final judgment from me on fraud.

[00:38:31] Speaker 06:
That ended up getting reversed, but only on the ground that they had the absolute right to do it.

[00:38:36] Speaker 06:
They dismissed it on condition that they paid all of our costs in that proceeding, and they would never bring a proceeding in England again.

[00:38:42] Speaker 06:
In terms of the Swedish, that case has also held that in London, that the Swedish proceeding wasn't preclusive with London.

[00:38:53] Speaker 06:
And it's preclusive for the reason I heard what my friend on the other side say, and that is that a US RICO claim couldn't be brought in a Swedish

[00:39:00] Speaker 06:
proceeding to annul an arbitral award.

[00:39:03] Speaker 06:
And in London, the court said effectively the same thing under London law, English law.

[00:39:07] Speaker 05:
But this is a RICO action predicated on fraud.

[00:39:14] Speaker 05:
And the fraud is in substantial part

[00:39:19] Speaker 05:
securing this award, right?

[00:39:23] Speaker 05:
And the question whether this award was secured by fraud seems to have been precisely the issue teed up in the Swedish court proceeding.

[00:39:34] Speaker 06:
Teed up under Swedish law, Your Honor, and not resolved on its facts.

[00:39:38] Speaker 06:
So there's no... Not resolved?

[00:39:40] Speaker 06:
On its facts.

[00:39:42] Speaker 01:
So that was my question.

[00:39:45] Speaker 01:
To the extent that what you're really claiming is

[00:39:48] Speaker 01:
And I understand you said, well, the lack of arm's length dealing with also aspects, but really the heart of the matter from the perspective of your clients is that they claim that this company was jacking up prices.

[00:40:08] Speaker 01:
And in order to do that, they were using entities under their own control.

[00:40:13] Speaker 01:
But really the heart of it is this jacking up of prices.

[00:40:18] Speaker 01:
That was an issue in the arbitration, was it not?

[00:40:21] Speaker 06:
No.

[00:40:22] Speaker 06:
No, it was discovered after the arbitration.

[00:40:24] Speaker 06:
That was not an issue in the arbitration.

[00:40:26] Speaker 06:
It was an issue in the subsequent motion that we brought in the Swedish courts to vacate under Swedish law.

[00:40:32] Speaker 06:
The Swedish courts did not make a factual finding on the fraud, whether it occurred or not.

[00:40:37] Speaker 06:
Did they look into it at all?

[00:40:39] Speaker 06:
They looked into it, and they said as a matter of Swedish public policy, even if it occurred,

[00:40:45] Speaker 06:
under the very limited grounds available to vacate an arbitral award in Sweden, which are exceedingly limited.

[00:40:51] Speaker 06:
And they are in this case in this country as well.

[00:40:55] Speaker 06:
No, it wouldn't rise to that level.

[00:40:57] Speaker 06:
But it's not claim conclusion because we couldn't have brought this claim.

[00:41:01] Speaker 06:
It's not issue preclusion because it wasn't resolved.

[00:41:04] Speaker 01:
Although in a way it was, now it's coming back to me, I apologize, that they had said, well, there was this offer.

[00:41:11] Speaker 01:
which they thought was objective for the, whatever, 199 million.

[00:41:15] Speaker 06:
Yeah, but the offer was, the bid, the indicative bid was made actually by a Kazakh company, and that was based entirely on the fraudulent statements, fraudulent financial statements that they had submitted.

[00:41:28] Speaker 06:
That's the allegation.

[00:41:28] Speaker 01:
Possibly factually an error, but entered

[00:41:33] Speaker 01:
as a matter of sidestepping the fraud allegations and approved by the high court.

[00:41:40] Speaker 06:
Yeah, but the Swedish court didn't make any determination that the fraud I just discussed, the fact that the indicative bid was based on the fraudulent statement, didn't reach that.

[00:41:52] Speaker 06:
It said, for purposes of Swedish public policy, all we care about

[00:41:57] Speaker 06:
is whether there was false testimony directly presented to the arbiters, and that's all we care about.

[00:42:03] Speaker 01:
This is something that's puzzling to me, and it has to do, I think, with these kinds of projects.

[00:42:13] Speaker 01:
If they're packing, I know this goes to the merits of the underlying, but it's part of understanding what the Swedish court did.

[00:42:21] Speaker 01:
If something has been way overpriced,

[00:42:25] Speaker 01:
It sounded like the Swedish court was saying, well, you know, the market is telling us it wasn't overpriced because people were bidding that amount.

[00:42:34] Speaker 01:
But you're saying that the pricing is more like input-based?

[00:42:39] Speaker 01:
Yes.

[00:42:40] Speaker 06:
People were bidding based on audited, supposedly audited financial statements, which we would show now have since been withdrawn by the auditor.

[00:42:48] Speaker 06:
And the audited financial statements were false and fraudulent because what the studies were doing was they were

[00:42:54] Speaker 06:
They had a sham company that they owned and they were charging that sham company hundreds of millions of dollars for things that they already had bought.

[00:43:03] Speaker 06:
And what that means for the investors in the United States is they were told that this project cost hundreds of millions of dollars more than it actually did.

[00:43:11] Speaker 06:
That money was raised by the investors and it went straight into the Saudi's pocket.

[00:43:16] Speaker 01:
And are those investors suing?

[00:43:17] Speaker 01:
Are there any?

[00:43:18] Speaker 06:
The investors reached a deal with the studies.

[00:43:20] Speaker 06:
So they did sue.

[00:43:21] Speaker 06:
The investors reached a deal.

[00:43:23] Speaker 06:
And what they're essentially going to do is they're going to get the money that the studies are trying to get from us.

[00:43:30] Speaker 06:
So it's all part of this whole project.

[00:43:32] Speaker 06:
And to get back to the pattern, which is the last thing I really would like to mention.

[00:43:36] Speaker 05:
Before you do that, can I just tie down the Swedish court proceeding?

[00:43:41] Speaker 05:
As I understand it,

[00:43:43] Speaker 05:
the ground of decision by the Swedish court was that even if there was fraud, it didn't impact the amount of the bid by the Kazakhstan entity and therefore didn't impact the amount of the award.

[00:44:07] Speaker 06:
I apologize, I don't have the Swedish decision before me, but I don't think that's the correct reading of it.

[00:44:13] Speaker 06:
I think they said that they weren't looking at whether it impacted the value of the bid.

[00:44:17] Speaker 06:
They were just looking at whether there were false statements made to the arbitral tribunal.

[00:44:23] Speaker 06:
If I'm mistaken on that, I apologize.

[00:44:24] Speaker 06:
I don't have that decision in front of me.

[00:44:27] Speaker 05:
But in terms of pattern, all I would like to say is that I- Well, I'll check if that's my understanding of it.

[00:44:35] Speaker 05:
If my understanding of it were correct.

[00:44:39] Speaker 06:
If there was a final finding in Sweden that, for example, the indicative bid wasn't in any way based on the fraud, then I still would say there would be no preclusion because it would be under Swedish law, Swedish principles, Swedish verbiage is a proof and a very limited record.

[00:44:58] Speaker 05:
Sounds like an actual determination that you can't show causation.

[00:45:03] Speaker 06:
Fair enough.

[00:45:03] Speaker 06:
I actually just heard the other side say they're not raising issue preclusion.

[00:45:07] Speaker 06:
So I think we're way beyond where we want to be.

[00:45:10] Speaker 06:
I would say that all of these, to the extent they're preserved, would be available on remand.

[00:45:15] Speaker 06:
And we should resolve this case.

[00:45:17] Speaker 06:
The district court resolved it wrongly, but I think on the correct basis, which is, does this complaint state a RICO claim?

[00:45:25] Speaker 06:
And it does.

[00:45:26] Speaker 06:
And it does because predicated acts can incur acts and can involve acts of litigation.

[00:45:33] Speaker 06:
has said that, even the courts that have some sort of an exception.

[00:45:36] Speaker 06:
And by the way, it's not every case that will end up being a RICO case.

[00:45:40] Speaker 06:
What the courts are trying to do here, and I think rightly, is saying you can't dress up a single case of malicious prosecution as a RICO case.

[00:45:47] Speaker 06:
We're not going to do that.

[00:45:49] Speaker 06:
I think where they go off the rails is probably pattern is the better way to deal with that kind of a situation.

[00:45:55] Speaker 06:
And so that's why our complaint has a broader pattern alleged.

[00:46:00] Speaker 06:
And with respect to Judge Katz, I do believe

[00:46:02] Speaker 06:
that 283 of the complaint we allege very broadly that the pattern includes everything that we've alleged.

[00:46:08] Speaker 06:
And it doesn't always have to affect us.

[00:46:11] Speaker 06:
And then we said in the motion to dismiss, also we said to the district court in the opposition to the motion to dismiss at page 114 of the appendix that, in fact, the scheme is much broader than litigation.

[00:46:30] Speaker 06:
It involved, as we said, to the District Court.

[00:46:32] Speaker 06:
Okay, that's... If you just give the citation, you're... Yeah, okay, that's fine.

[00:46:36] Speaker 06:
I'll just read it one... I'll just read one... Just give us... And that'll be it.

[00:46:39] Speaker 04:
Just give us the page, that'll be it.

[00:46:40] Speaker 06:
Page 114 of the appendix, and what we said was the scheme is much broader than litigation, and it states a recalculation.

[00:46:46] Speaker 06:
We'll take the matter under submission.

[00:46:47] Speaker 06:
Thank you.

[00:46:48] Speaker 06:
Thank you so much, Your Honor.