[00:00:00] Speaker 03: Case number 22-1746. [00:00:03] Speaker 03: Jones Langley-Sall, brokerage, Inc. [00:00:05] Speaker 03: at Bellin versus 1441L Associates, LLC. [00:00:10] Speaker 03: Doing business as 1441L Street, Associates, LLC. [00:00:14] Speaker 03: Ms. [00:00:15] Speaker 03: McNally, party at Bellin. [00:00:16] Speaker 03: Mr. Laflin, party at Beli. [00:00:20] Speaker 04: Good morning, Council. [00:00:22] Speaker 04: Ms. [00:00:22] Speaker 04: McNally, please proceed when you're ready. [00:01:13] Speaker 05: Good morning. [00:01:14] Speaker 05: May it please the court. [00:01:16] Speaker 05: I'm Laura McNally from the law firm of Morgan, Lewis, and Dachius, and I'm here representing plaintiff propellant Jones-Langsell Brokerage Incorporated for JLL. [00:01:28] Speaker 05: The court below found that defendant appellee 1441 is a sophisticated, licensed actor in the real estate market that understood and consented to JLL's full representation. [00:01:44] Speaker 05: In addition, 1441 does not claim that JLL in any way harmed it or wronged it in connection with the transaction. [00:01:53] Speaker 05: Why are we here? [00:01:55] Speaker 05: Because the court below found 1441 is taking advantage, seeking to take advantage of what the court found to be JLL's technical non-compliance with the statute at issue in order to avoid paying admission that the court below found JLL rightfully earned. [00:02:14] Speaker 05: Problem with that analysis, that JLL did comply with the statute. [00:02:19] Speaker 05: And second, there is no need to avoid the complaint if this court views the statute differently. [00:02:27] Speaker 05: There are two reasons to reverse and remand here. [00:02:30] Speaker 05: First, the statute at issue only requires written consent. [00:02:35] Speaker 05: That written consent is present here. [00:02:38] Speaker 05: To the extent this court views the statute otherwise, second, there is no reason to void the commission. [00:02:46] Speaker 05: Now, turning first to the statute that is here. [00:02:49] Speaker 05: We're dealing with the Brokerage Act in section 1703 of section I. That first sentence of that statute requires that a licensee may act as a dual representative only with written consent of all clients through the transaction. [00:03:06] Speaker 02: Where do you say that written consent first happened? [00:03:09] Speaker 05: Written consent happened in three documents that are in the record. [00:03:12] Speaker 05: It is in the exclusive leasing agreement. [00:03:15] Speaker 02: Maybe one at a time. [00:03:18] Speaker 02: That's okay. [00:03:19] Speaker 02: So, um, I understand your argument on the leasing agreement, exclusively seen agreement is that you attached a completely blank form that looks much like the one in the statute, but contains no information, no disclosure of what's happening, who's being represented, anything. [00:03:41] Speaker 02: And then that, [00:03:42] Speaker 02: counts as written consent because the contract was signed? [00:03:47] Speaker 05: Correct. [00:03:48] Speaker 05: The document should be considered together. [00:03:50] Speaker 02: And in fact, we can consider it together, but it's completely blank, which I guess to me would imply that it's not implicated in the case. [00:04:00] Speaker 02: If I were looking at a contract and I would just think these are form contracts, they always attach to them. [00:04:04] Speaker 02: It's not filled out. [00:04:06] Speaker 02: There's no identification of who you were representing in here. [00:04:10] Speaker 02: It's not just that it's not signed. [00:04:12] Speaker 02: you're supposed to show who you were representing. [00:04:15] Speaker 02: And so there's no information. [00:04:18] Speaker 02: And so I'm having a little trouble understanding. [00:04:21] Speaker 02: I get that it's incorporated, but it seems to me to be incorporated as a representation that there's no dual representation because otherwise this would have been filled out. [00:04:32] Speaker 02: What is wrong with that theory? [00:04:33] Speaker 05: So again, I think that you have to consider the documents [00:04:38] Speaker 05: You have to consider the exclusive leasing agreement, which does have the exact statutory form disclosure in combination with the regus lease, in combination with letters that 1441. [00:04:47] Speaker 02: But those all happen at different times, correct? [00:04:50] Speaker ?: Yes. [00:04:52] Speaker 05: And that, interestingly enough, 1441 does not contest that consent was provided. [00:04:59] Speaker 05: And in fact, in their appeal brief, they say that they adopt JLL's recitation of the facts. [00:05:04] Speaker 05: And the court below found that 1441 [00:05:07] Speaker 05: did in fact consent to jail. [00:05:10] Speaker 02: Right, but that was pretty late. [00:05:11] Speaker 02: So if we then talk about the letter, the 2017 letter and the Regus lease, those are very, very late in the process. [00:05:20] Speaker 02: Correct? [00:05:21] Speaker 02: I mean, the 2017 letter was more than a year after [00:05:25] Speaker 02: Sorry, maybe it's not late. [00:05:28] Speaker 02: When did the dual representation commence? [00:05:30] Speaker 02: Does the record tell us that? [00:05:32] Speaker 05: The record is very clear that by December of 2017, that is the letter that 1441 sent to the JLL. [00:05:39] Speaker 02: No, I know that's when 1441 sent a letter, but that does not tell me when Jones Lang started representing Regis. [00:05:48] Speaker 05: So Jones Lang was outrepresented Regis from the beginning is my understanding. [00:05:52] Speaker 02: From this very beginning. [00:05:53] Speaker 05: I don't think that there is a [00:05:55] Speaker 05: It was a different team of brokers representing Regis and a separate team that was representing 1441. [00:06:04] Speaker 02: So it wasn't until this other client was on the verge of signing the lease after a long period when it wasn't able to get rented out. [00:06:17] Speaker 02: So it sounds like at least a year or a year plus this dual representation was going on without any disclosure to 1441. [00:06:24] Speaker 02: Or are you telling me that it was disclosed early on? [00:06:27] Speaker 05: I don't think that 1441 claims that they were unaware of and did not consent to. [00:06:33] Speaker 02: The burden's on you to establish that consent was given. [00:06:38] Speaker 02: And so if this was going on for well over a year and then it wasn't until [00:06:45] Speaker 02: after way more than a year, unable to rent this probably very expensive property. [00:06:49] Speaker 02: Suddenly I've got a client. [00:06:54] Speaker 02: And by the way, we've got, we're representing another part of my company is representing them as well. [00:06:59] Speaker 02: 1441 is back is kind of against the wall. [00:07:03] Speaker 02: If they object and they could lose this rental. [00:07:08] Speaker 02: Um, and so how do I know? [00:07:09] Speaker 02: And how do I know that's not what was going on that they really [00:07:13] Speaker 02: at that point had no choice but to sign off on it because they wanted to get this property rented. [00:07:20] Speaker 05: I think that how we know that's not going on is that 1441 hasn't claimed that that was what happened. [00:07:26] Speaker 05: They haven't made any claim that JLL somehow told them too late or tied their hands. [00:07:31] Speaker 02: Yeah, but if we were to accept your theory of consent very late in the process at sort of a critical time, [00:07:44] Speaker 02: How would that not allow this sort of back against the wall disclosure in other cases? [00:07:54] Speaker 05: So under the circumstances here, I don't think that having knowledge even here at least six months is reflected in the record. [00:08:04] Speaker 05: And very likely earlier, right, the timing 1441 never raised that as an issue. [00:08:09] Speaker 05: Again, they've never complained that they complained about the fact that JLL represented Regus in the deal. [00:08:15] Speaker 05: They've never brought up any claim that they were somehow harmed or forced into that transaction. [00:08:21] Speaker 04: So you didn't affirm it and then move for summary judgment, right? [00:08:24] Speaker 04: The only question we have is the other sides pushed for summary judgment. [00:08:27] Speaker 05: Correct. [00:08:28] Speaker 04: So then there's still an open issue as to whether, even if we accept your interpretation of the statute, [00:08:34] Speaker 04: such that let's just suppose hypothetically we do I'm not saying we definitely will but let's just suppose that we do then the question of whether the statute was complied with in terms of written consent just hasn't been resolved yet because the district court resolved the case on another ground that you think was erroneous. [00:08:49] Speaker 05: I think that that's a fair interpretation I also think that the record and the way that the briefing has played out here 1441 has adopted JLL's recitation of the facts on appeal which include the fact that [00:09:02] Speaker 05: 1441 provided written consent. [00:09:05] Speaker 04: So then you might have an argument on, if we were to go down this road and we were to remand, then you might have an argument on remand that everybody agrees that written consent was applied. [00:09:13] Speaker 04: But at this point, the district court didn't address that issue. [00:09:17] Speaker 04: You didn't move for summary judgment. [00:09:19] Speaker 05: Correct. [00:09:20] Speaker 05: In the district court's opinion, the district court does find that the record shows that consent was provided. [00:09:27] Speaker 05: And I think that- Which line are you referring to? [00:09:30] Speaker 05: Page 13 of the district court's opinion. [00:09:37] Speaker 02: Does the district court find timely consent? [00:09:41] Speaker 05: I don't think that the statute provides for. [00:09:44] Speaker 02: You don't think it has any timing requirement? [00:09:46] Speaker 05: I don't believe that the statute by its terms does not have any type of timeliness. [00:09:52] Speaker 02: It doesn't incorporate the timeliness requirement from H, which is at the earliest practical time, but in no event later than the time when specific real estate assistance is first provided. [00:10:05] Speaker 05: Yes, but again, 1441 has not called into question that portion of the statute. [00:10:11] Speaker 02: Again, 1441. [00:10:12] Speaker 02: I'm just trying to understand your theory of the statute is that they may not have raised the claims that are preserved in this case. [00:10:18] Speaker 02: I understand that argument. [00:10:20] Speaker 02: I'm just trying to understand your theory of what the statute means, because that's where you're asserting legal error on the part of the district court. [00:10:26] Speaker 02: And your theory of what the statute means is that the blank disclosure form counts [00:10:35] Speaker 02: as written disclosure. [00:10:36] Speaker 02: And we can look at the 2017 letter because there is no time limits requirement on the written disclosure. [00:10:45] Speaker 05: I think that on the record here, we have to look at the blank form plus then. [00:10:52] Speaker 02: Okay, right. [00:10:53] Speaker 02: But then if we're looking, if we have to also look at those two other things, then that's why I was adding in that then there is no time as a matter of law, your position is that there's [00:11:04] Speaker 02: no time, particular time that this disclosure has to be made, other than, I guess, before someone signs on the dotted line at the very end of the whole representation. [00:11:16] Speaker 05: I think that in connection with subsection I, which is what we're dealing with here, there's no timeliness requirement. [00:11:21] Speaker 05: And that with respect to the previous sections, that wasn't something that the district court was deciding. [00:11:27] Speaker 02: No, I know. [00:11:27] Speaker 02: I'm just asking you your theory of the law. [00:11:29] Speaker 02: Because you said, we're talking about the district court's application of law. [00:11:34] Speaker 02: And so I'm just trying to understand yours. [00:11:36] Speaker 02: So it is your position that there is no timeliness requirements for the disclosure of dual representation any earlier than say the 2017 letter. [00:11:56] Speaker 05: I have two reactions to that. [00:11:59] Speaker 05: My position is that in subsection I, [00:12:03] Speaker 05: But I'm not asking that. [00:12:05] Speaker 05: There is an earlier subsection of that same statute that provides, has language along the earliest practical. [00:12:12] Speaker 02: Right, that's H. And that, so I... And would that govern, but what I'm trying to understand, you know so much more about this law than I do, is does H's time limit, because it's not supplanted by anything in I, govern disclosure of the dual relationship? [00:12:31] Speaker 02: That's all I'm asking. [00:12:34] Speaker 02: Okay. [00:12:35] Speaker 02: Okay. [00:12:36] Speaker 05: Because I refers back, refers to the disclosure part in this section that doesn't use the language in this subsection. [00:12:43] Speaker 02: Okay. [00:12:43] Speaker 02: So you're not disputing that legal thing is illegal requirement to have provided disclosure far earlier than you did. [00:12:50] Speaker 02: It's just that they have not, at least at this juncture, raise that argument. [00:12:55] Speaker 02: And that's not what the district court relied on. [00:12:57] Speaker 02: Is that, is that where we are? [00:12:58] Speaker 02: Yes. [00:12:59] Speaker 05: I think that if that thing were to arise, we'd have to [00:13:04] Speaker 05: deeply into the discovery edition here. [00:13:08] Speaker 05: Some are just much more broad than that discovery. [00:13:11] Speaker 05: So on the record before us, we have the three documents. [00:13:16] Speaker 05: I think that the December letter is the clearest acknowledgement of 1441's knowledge. [00:13:22] Speaker 05: But I don't know if the record proposes that it could have and likely was. [00:13:27] Speaker 04: Your interpretation of the phrase, as required by this section, is a look back to H. I think you can strip more broadly. [00:13:35] Speaker 05: It could be section 1703. [00:13:36] Speaker 05: They could have used the word subsection. [00:13:38] Speaker 05: I think they do in a couple of other places. [00:13:41] Speaker 04: But not here. [00:13:42] Speaker 04: It says section. [00:13:43] Speaker 05: And I think, too, that if you look at the statute, the first sentence of the statute says, we need written disclosure. [00:13:50] Speaker 05: And we think that that's that. [00:13:52] Speaker 05: And then it's the question of, well, what comes next? [00:13:54] Speaker 05: And the next section, the next sentence of the statute says that such written consent and disclosure as required by this section shall be presumed [00:14:03] Speaker 05: who have been given as against any client who signs a disclosure as provided in that section. [00:14:09] Speaker 05: So what that's telling us is that what comes next is going to give rise to this presumption of compliance. [00:14:15] Speaker 04: I think we have that part of your argument from the briefing. [00:14:17] Speaker 04: And I just wanted to make sure that when you look at the words as required by this section, your construction of as required by this section is looking back through the entire section, including especially subsection H. Yes. [00:14:31] Speaker 04: OK. [00:14:31] Speaker 05: A fair reason. [00:14:33] Speaker 05: in other places in the statute that you do use the term subsection. [00:14:37] Speaker 04: Okay. [00:14:38] Speaker 04: Let me make sure my colleagues don't have. [00:14:39] Speaker 02: Can I ask one more? [00:14:40] Speaker 02: I apologize. [00:14:41] Speaker 02: So the form letter, and it is in the blank form attached to the original leasing agreement, includes representations about maintaining confidentiality in the cases of dual representation. [00:14:53] Speaker 02: And while that is in the blank document, I did not see those assurances in either the 2017 letter or the Regus. [00:15:02] Speaker 02: Do you know if that confidentiality representation is required as part of any dual representation disclosure, or is that just part of this form? [00:15:19] Speaker 02: I get the presumption argument, but it seems like a pretty substantial thing. [00:15:22] Speaker 02: And I'm trying to figure out if that is also supposed to be the part of any written consent. [00:15:25] Speaker 05: So it's required in the form agreement in order to give rise to this presumption [00:15:32] Speaker 05: And the other, I think, nuance with the statute there is that in addition to giving rise to a presumption of compliance, it's to be given as against any client. [00:15:42] Speaker 05: So it's if a client is claiming that they were not informed and did not consent to them. [00:15:47] Speaker 05: We're in this world here where 1441 doesn't claim they didn't know about JLL's dual representation. [00:15:56] Speaker 05: So the statutory construct is to give the presumption of compliance [00:16:01] Speaker 02: So this confidentiality assurance is not an independently required component of any written consent. [00:16:13] Speaker 02: It's only in this form. [00:16:15] Speaker 02: And if you get written consent some other way, you don't have to say boo to anybody about confidentiality. [00:16:21] Speaker 05: I think that there are fiduciary duty principles at work that require a company to [00:16:28] Speaker 05: or a broker who's being a dual representative to provide all kind of material relevant information, which arguably could be that you can't share confidential information, but that's not the claim that we're dealing with. [00:16:42] Speaker 02: I'm just trying to understand. [00:16:43] Speaker 02: Okay. [00:16:45] Speaker 04: Okay. [00:16:46] Speaker 04: Thank you. [00:16:46] Speaker 04: We'll give you a little bit of time for rebuttal. [00:16:48] Speaker 04: And why don't we hear from the other side, Mr. Laughlin. [00:16:51] Speaker 04: Thank you, Your Honor. [00:17:38] Speaker 03: Good morning, Your Honors. [00:17:39] Speaker 01: May it please the court, Alexander M. Lothman of Odin, Feldman, and Tittleman on behalf of the appellee 1431 Appellate Associates. [00:17:47] Speaker 01: Your Honors, the appellant has cited two reasons for reversing the district court to some of each other. [00:17:53] Speaker 01: One was that the statute only requires written consent, and that written consent is given. [00:18:00] Speaker 01: There's a saying that bad facts make bad law, and there's a number of bad facts against JLL today. [00:18:08] Speaker 01: JLL had consent. [00:18:11] Speaker 01: JLL had expressed knowledge of the dual representation. [00:18:16] Speaker 01: JLL signed a letter confirming that dual representation. [00:18:22] Speaker 01: Excuse me, 1441 signed a letter confirming that representation. [00:18:26] Speaker 01: And JLL brought the tenant to 1441L. [00:18:30] Speaker 01: The problem with the argument here about only requiring written consent is it requires written consent as required under the statute. [00:18:38] Speaker 01: And JLL did not. [00:18:40] Speaker 00: So you're saying to fail safe in the statute is a requirement. [00:18:44] Speaker 00: I just want to tell you, I'm highly skeptical of that. [00:18:47] Speaker 00: I want to make sure I understood listening to both. [00:18:50] Speaker 00: The argument is, can you hear me okay? [00:18:53] Speaker 00: The argument between you seems to me a straightforward legal question, whether [00:18:58] Speaker 00: You just conceded what you conceded in your brief. [00:19:01] Speaker 00: There was written consent given by the lease exclusive listing agreement and the letter. [00:19:07] Speaker 00: Your brief concedes that. [00:19:09] Speaker 00: The written consent was given. [00:19:12] Speaker 00: Your sole argument, which is what the district court seemed to buy, written consent has to be given in a certain form as shown in the statute. [00:19:23] Speaker 00: And as you say in your brief, if you don't have it, [00:19:27] Speaker 00: Disclosure that's conspicuous, printed in bold lettering, all caps underlined and with separate box and there's no consent. [00:19:35] Speaker 00: I want to tell you and you can respond as you see fit. [00:19:39] Speaker 00: That's not what the statute says. [00:19:41] Speaker 00: The statute starts by making it absolutely clear a licensee may act as a dual representative only with written consent of all clients. [00:19:50] Speaker 00: You can see that's been taken care of. [00:19:52] Speaker 00: There is a fail safe. [00:19:55] Speaker 00: which you hook up with the presumption, there's a presumption if you do all of this foolishness, but that isn't the only way you can get or give written consent. [00:20:07] Speaker 00: The statute just doesn't say what you're saying it says. [00:20:10] Speaker 01: But it says that when the safe harbor is not executed, that you can give these disclosures in combinations with other disclosures, but then provides specific and exacting format [00:20:24] Speaker 01: to use the district court's language as to what that other disclosure needs to look like. [00:20:30] Speaker 00: I don't see anything in the statute that says written consent must be given in a specific form. [00:20:35] Speaker 00: It's just not there. [00:20:37] Speaker 01: It says written consent in accordance with the statute, and the statute further requires that the brokers involved, the licensees in this case, comply with all provisions of applicable law, including the statute. [00:20:50] Speaker 00: No, it does not say written consent. [00:20:53] Speaker 00: It doesn't connect in connection with the failsafe. [00:20:56] Speaker 00: It does not say written consent can only be given as shown by the point. [00:21:02] Speaker 00: As you say, it's not written consent unless it's what printed in bold letters, all capitals underlined and was separate box. [00:21:09] Speaker 00: That's not what the statute says. [00:21:11] Speaker 00: That's a failsafe. [00:21:12] Speaker 01: But when the failsafe is not available, what is the prescribed form? [00:21:17] Speaker 00: It doesn't have to be available if you've otherwise got written consent and no one disagrees. [00:21:23] Speaker 00: You don't disagree. [00:21:24] Speaker 00: You both agree. [00:21:24] Speaker 00: There is written consent. [00:21:26] Speaker 00: The question is, must it be given in a certain form? [00:21:31] Speaker 00: And I don't see it in the Senate. [00:21:33] Speaker 01: In our view, in the district court's view, it does. [00:21:35] Speaker 00: Yeah, I understand. [00:21:36] Speaker 00: I read your brief and I read the district court's opinion and respectfully think you're wrong. [00:21:43] Speaker 00: That's not what the statute says. [00:21:45] Speaker 00: And you have to show me where it says that. [00:21:47] Speaker 00: It's not what the statute says. [00:21:48] Speaker 00: You can only give written consent in a single way. [00:21:52] Speaker 00: And if you haven't used capitals and bold lettering, et cetera, and the district court was even saying, I think, quite honestly, in her opinion, this all seems pretty absurd to me, but I think this is the interpretation. [00:22:08] Speaker 00: Well, if I think that she was mistaken, [00:22:12] Speaker 00: then her concern about this law being quite absurd has great meaning and force. [00:22:17] Speaker 00: It is absurd. [00:22:18] Speaker 00: You all have consent. [00:22:20] Speaker 00: There was full disclosure here. [00:22:22] Speaker 00: No one was confused in any sense of justice. [00:22:25] Speaker 00: There's no conceivable way they could be denied the commission. [00:22:29] Speaker 00: None. [00:22:30] Speaker 01: The question is whether or not [00:22:33] Speaker 01: This licensee should be held to the exact and standard set forth in the statute. [00:22:37] Speaker 00: Well, we're fighting over what the statute means. [00:22:39] Speaker 00: And I'm telling you, I don't read the statute to require what you say. [00:22:42] Speaker 00: If the statute really said what you said, in that first sentence it said, a licensee may act as a dual representative only with written consent as specifically described below, then you'd have a case. [00:22:58] Speaker 00: That is not what it says. [00:22:59] Speaker 00: If it says, [00:23:01] Speaker 00: with the written consent of all clients and for the transaction. [00:23:05] Speaker 00: Then it goes on to talk about fail saves, which are other forms of written consent. [00:23:10] Speaker 00: And it talks about, and in some instances, we'll just presume you have it if you do certain silly things as a presumption. [00:23:17] Speaker 00: That works against your argument. [00:23:19] Speaker 00: The presumption assumes there are other ways that you can have written consent. [00:23:25] Speaker 00: That's where your district court and you both miss the language that's in the statute. [00:23:31] Speaker 00: Presumption works against you. [00:23:33] Speaker 01: We disagree, Your Honor. [00:23:34] Speaker 01: The district court doesn't see it that way, to the extent that they want to rely on their other combined disclosures. [00:23:42] Speaker 01: It's not disputed that the rider to the listing agreement was not signed. [00:23:47] Speaker 01: It's not disputed that paragraph 35 of the lease doesn't include the language it cautions about the sharing of dual information. [00:23:55] Speaker 01: It's not disputed that the letter 17, 2017 letter doesn't say that. [00:23:58] Speaker 02: So are you focusing then on the language in two which says any disclosure which complies substantially in effect with the following shall be deemed in compliance with this disclosure requirement? [00:24:10] Speaker 02: Yes, and so you say this is not just want to make sure I'm understanding things. [00:24:16] Speaker 02: And so your argument is the signed agreements that they point to at least a 2017 letter and then the Regis lease do not comply substantially in effect with the following. [00:24:30] Speaker 01: No, and I think the recitation in the sample form of the dual agency and the evils that have to be disclosed about not sharing information on both sides of the transaction to say that that's in that sample form, but isn't part of this act and this licensure requirement strains for duality. [00:24:48] Speaker 02: But substantially in effect cannot mean identical to all this. [00:24:51] Speaker 02: So how do we know what's a substantially in effect? [00:24:54] Speaker 01: The question is whether or not if you have specific and exacting formatting in the legislation, whether it's prescribed to the font, pitch, all cap, box or whatever. [00:25:09] Speaker 00: And where in the statute that it says you must follow that form? [00:25:13] Speaker 01: It doesn't. [00:25:14] Speaker 01: It says if you don't utilize the safe harbor and you have to give combinations of these disclosures and combinations of other forms, you must give it in this format. [00:25:24] Speaker 01: and just say that you can substantially comply with the statute that's exactly down to this level of what needs to be disclosed constrains the idea of what, how long- The whole point of having that language in subsection two would seem to be the, look, you don't have to follow every jot and tittle that we've laid out here. [00:25:42] Speaker 02: It just has to be substantially compliant. [00:25:46] Speaker 02: And that's very different from saying you got to use the big font. [00:25:50] Speaker 02: In particular, that requirement comes if you're combining the disclosure with other documents, but the 2017 letter wasn't combined with anything. [00:25:57] Speaker 02: So that language about fonts and bowls and boxes doesn't apply at all to the 2017 letter. [00:26:04] Speaker 02: What about the 2017 letter was not substantially in compliance with the section? [00:26:09] Speaker 01: It doesn't speak to, it doesn't say that we're not permitted to share [00:26:14] Speaker 01: information besides the broker side and the tenant side. [00:26:17] Speaker 01: It says that in the sample form, and we're being presented. [00:26:19] Speaker 02: Is that what you argued to the district court, that these latter two disclosures were not in substantial compliance because they omitted the confidentiality? [00:26:29] Speaker 01: Not on point, Your Honor. [00:26:31] Speaker 01: We argued that after we determined that the rider to the ELA had not been executed, we confirmed that neither party had to deliver that, and then we brought the summary judgment [00:26:42] Speaker 01: We went through the combined other disclosures and search them intensively. [00:26:48] Speaker 01: And none of them, when patched together, satisfy the requirements of subsection two, if you believe that that is what the GC council included. [00:27:00] Speaker 00: Yeah, if you believe. [00:27:02] Speaker 00: And if I believe that what they meant to say was what they said in that first sentence, and that's the principal requirement, that is, [00:27:10] Speaker 00: can act as a dual representative with written consent, and doesn't then follow it with saying the written consent must be given in the form shown below. [00:27:19] Speaker 00: That's not what it says. [00:27:21] Speaker 01: No, but in order to obtain the authority to act as a dual agent, you have to provide that consent in some format. [00:27:31] Speaker 01: And the statute requires the title of chapter 17 and title of 42. [00:27:38] Speaker 00: What would be required is what the district court did and what you can see that as you look at the evidence in the case and you make a determination. [00:27:46] Speaker 00: given the information that was exchanged with the parties, do we have here something that as a matter of fact, I would conclude is written consent. [00:27:56] Speaker 00: District courts do that all the time. [00:27:57] Speaker 00: You've conceded if you were district court judge, you would have said, yes, there was written consent. [00:28:03] Speaker 00: I'm saying to you as a judge on appeal, you've conceded the point because you don't need to do anything more. [00:28:10] Speaker 00: The district court doesn't need to find anything more than whether or not written consent was given. [00:28:17] Speaker 00: And you've conceded that. [00:28:19] Speaker 01: Conceded that on the nuanced point, Your Honor, I set forth and agree. [00:28:24] Speaker 01: Consent is given as required. [00:28:26] Speaker 01: The brokerage act is required. [00:28:27] Speaker 00: I understand it's as required as you think the statute requires. [00:28:31] Speaker 00: And boy, that's not the way you'd write the statute if that's what the legislature was looking for. [00:28:38] Speaker 00: You have to give written consent, and it can only be given in this way. [00:28:41] Speaker 00: If you don't give it in this way, there is no written consent. [00:28:44] Speaker 00: That's not what it says. [00:28:45] Speaker 00: I know, Your Honor. [00:28:46] Speaker 00: Sure. [00:28:47] Speaker 00: The statute speaks to... As I say, Truett, as a presiding judge, you look very hard to understand. [00:28:53] Speaker 01: Speak to the licensure of real estate professionals. [00:28:57] Speaker 01: And throughout that section, it speaks to compliance with this act. [00:29:03] Speaker 01: And one of the provisions that they're supposed to comply with is all applicable regulations of this statute and other law. [00:29:12] Speaker 01: And to the extent that if this court believes [00:29:15] Speaker 01: that the exacting the specific requirements of that disclosure when combined together have to be given that fashion. [00:29:22] Speaker 01: And that should end this this issue. [00:29:24] Speaker 01: And then we can worry about the other consequences later. [00:29:27] Speaker 01: I may. [00:29:27] Speaker 04: Thank you. [00:29:31] Speaker 04: Thank you, Mr. Love and appreciate it. [00:29:40] Speaker 04: Ali will give you two minutes for rebuttal. [00:29:47] Speaker 05: Thank you, Your Honor. [00:29:47] Speaker 05: I just wanted to take a moment to address Judge Malik's question earlier. [00:29:59] Speaker 05: Forgive me if this is supposed to be rebuttal before coming back to answer your question, Your Honor. [00:30:04] Speaker 05: But I took a deeper dive on the limited record that we have in appeal. [00:30:08] Speaker 05: And it's not clear when 1441 entered the picture. [00:30:11] Speaker 05: So although the ELA was signed, [00:30:13] Speaker 05: originally in June 2016. [00:30:15] Speaker 02: When 1441, you mean when Regis entered the picture? [00:30:18] Speaker 05: Regis entered the picture, my apologies. [00:30:20] Speaker 05: When Regis entered the picture, so although the ELA was signed in June 2016, and we know we have the letter starting in December 2017, it's not clear, at least from this record, when Regis entered the picture to the extent, I know Your Honor had some concerns regarding the timeliness of JLL's disclosure. [00:30:39] Speaker 05: I think first, 1441 hasn't claimed that the disclosures weren't any way [00:30:44] Speaker 05: untimely, but also the record doesn't suggest or support that they were untimely. [00:30:52] Speaker 03: Thank you. [00:30:54] Speaker 03: Anything further? [00:30:55] Speaker 04: I don't think so. [00:30:57] Speaker 04: Thank you, counsel. [00:30:57] Speaker 04: Thank you to both counsel. [00:30:59] Speaker 04: We'll take this case under submission.