[00:00:00] Speaker 01:
is based on new evidence generated in two other cases, one to Louisiana, a tax abuse case, which we call the Kempke case.

[00:00:11] Speaker 01:
And the other one is a Canadian parallel case to this.

[00:00:16] Speaker 00:
In your complaint, Mr. Dunner, do you allege anywhere that Dow as a company was aware of any supposed fraud that was being perpetrated?

[00:00:27] Speaker 00:
We do allege that, Your Honor.

[00:00:30] Speaker 01:
And I don't know that I can give you a number, but that will come very shortly.

[00:00:45] Speaker 01:
My colleagues will give that to me.

[00:00:48] Speaker 01:
We have allegations that Dao was aware, for example, we have

[00:01:00] Speaker 02:
You've got evidence here at best of inconsistent testimony.

[00:01:06] Speaker 02:
At best, you've got evidence that there's inconsistent testimony between the testimony that was given in this proceeding and that was given in another proceeding.

[00:01:16] Speaker 02:
Why does that rise to the level of fraud?

[00:01:20] Speaker 02:
I don't understand the cases that support the notion that your inconsistency is evidence of fraud.

[00:01:29] Speaker 01:
Your Honor?

[00:01:29] Speaker 01:
The test is the promptly test.

[00:01:31] Speaker 01:
We have to make out a plausible case, and we do make out a plausible case.

[00:01:35] Speaker 02:
Well, how does it make out a plausible case of fraud?

[00:01:38] Speaker 01:
Because we have a situation where there are multiple elements to it.

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We have a situation where a Dow counsel consistently said on the question of

[00:01:57] Speaker 01:
whether or not all U.S.

[00:02:00] Speaker 01:
patents were transferred, consistently said they would not have been transferred en masse because they would lose rights in doing it.

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We have, in the Louisiana case, we have a witness, Valenzuela, who is in the tax department at Dow, who is responsible for computing royalties both under the ChemTech agreement

[00:02:23] Speaker 01:
and under the subsequent agreement involving the 2002 contribution agreement.

[00:02:30] Speaker 01:
We have a situation where we have an agreement summary form, which was never given to us in the Delaware case, even though Discovery asked for it, which basically shows that balance of will.

[00:02:44] Speaker 01:
The balance of will, as I recall as testimony, he says, I think so.

[00:02:50] Speaker 01:
Your Honor, at first he said, I think.

[00:02:52] Speaker 01:
But he repeated and said he was asked repeatedly and he said everything.

[00:02:58] Speaker 01:
He said all.

[00:02:59] Speaker 01:
We cite that in our brief where he actually was examined further and made it absolutely clear that it is much more than I think.

[00:03:11] Speaker 02:
Yeah, but even if he said more than I think, that wasn't an issue in the tax case.

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as to whether the transfer occurred in 2002.

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I've looked at the tax case.

[00:03:25] Speaker 02:
That's not the issue there.

[00:03:28] Speaker 02:
In other words, this was testimony that was collateral to the issue in the tax case, right?

[00:03:33] Speaker 01:
Your Honor, the issue was a tax abuse based on... No, no, but answer my question.

[00:03:38] Speaker 02:
It wasn't directly involved.

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The question of whether that transfer was made

[00:03:43] Speaker 02:
was not directly an issue in the tax case, right?

[00:03:45] Speaker 01:
The 2002 contribution agreement was not directly involved in the tax case.

[00:03:50] Speaker 01:
That is right.

[00:03:52] Speaker 01:
But what I'm saying is his testimony was highly relevant to this case because he said that at the end of 2001, which was exactly when the 2002 contribution agreement was formed and came into being, January 1st, 2002, he said at that time,

[00:04:13] Speaker 01:
All of the Dow patents, US and foreign, he didn't distinguish between the two, were contributed to a holding company, which ended up being the same company to which the earlier contribution was made.

[00:04:27] Speaker 01:
68 high value US patents in the Louisiana case.

[00:04:32] Speaker 01:
And this agreement summary form ties the two together.

[00:04:36] Speaker 01:
It ties, it basically says that

[00:04:39] Speaker 01:
This agreement supersedes the prior contribution agreement between the initials for Dow and Diamond Tech, which was the holding company, dated April 30, 1993.

[00:04:51] Speaker 01:
Valenzuela was a copy recipient of this document.

[00:04:56] Speaker 01:
Isley, who was the Associate General Counsel, was a recipient of it.

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Mr. Knapp, however you pronounce it, who was

[00:05:05] Speaker 01:
charged with the Delaware litigation, what we are saying and we allege.

[00:05:09] Speaker 02:
So why is this evidence of fraud instead of just a mistake?

[00:05:15] Speaker 01:
Because they insisted, they all insisted, these people in-house, these people in-house knew what was being said in both cases.

[00:05:26] Speaker 01:
They knew that what was being said in the Delaware case was that we wouldn't do it.

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And they knew that what was being said in the Louisiana case was, we did it all.

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They're puzzling about the difference between all and substantially all.

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But the supplement, the Schedule B supplement, which was the key document in Dow 1, had 70, there were 7,300 US patents.

[00:05:54] Speaker 01:
And that document only listed four.

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Now all these people, all we need to do is make out a plausible case.

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We don't have to prove our whole case.

[00:06:02] Speaker 01:
We have to make out a plausible case.

[00:06:04] Speaker 01:
Of fraud.

[00:06:05] Speaker 01:
Of fraud.

[00:06:06] Speaker 01:
When you've got people saying the people at the very least in-house and the lawyers in-house satisfy the fraud on the court test and fraud on nobody doesn't require it.

[00:06:21] Speaker 02:
Let me ask you some questions about the Canadian case.

[00:06:25] Speaker 02:
Start with the one I improvidently asked you before about Suarez.

[00:06:32] Speaker 02:
And the question of where in the record he said the separation was clean.

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Where is that, please?

[00:06:47] Speaker 01:
Where he said it's clean?

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He said he didn't get

[00:06:51] Speaker 01:
In Canada, he said he didn't get a clean coming off.

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In the United States, he said he actually isolated, I can give you the size, 21082-84 in the amended complaint, paragraphs 111 to 117, which is what we're focusing on.

[00:07:12] Speaker 01:
And he said he actually isolated the alleged component B, that they used to establish infringement,

[00:07:20] Speaker 01:
He said he had done tests on it.

[00:07:22] Speaker 01:
He said the separation was easy.

[00:07:24] Speaker 01:
He said all those things, and that's in the paragraphs I just gave you.

[00:07:28] Speaker 01:
In Canada, he said exactly the opposite.

[00:07:31] Speaker 01:
He said he didn't get a cream cutting off.

[00:07:33] Speaker 01:
He said he didn't believe at any time that his tref technique, which is the technique he used, could separate blended materials with similar crystallization properties, and that to do so is, quote, perhaps impossible, close to impossible.

[00:07:47] Speaker 02:
I mean, I really don't understand.

[00:07:49] Speaker 02:
This is so confusing, this second example of inconsistency.

[00:07:55] Speaker 02:
You know, you didn't put on an expert witness to explain why the two statements were inconsistent, and it doesn't seem to me on the face of it that they necessarily are.

[00:08:06] Speaker 02:
And, you know, I just say that so that you can try to explain it more clearly, but it's not clear to me that there's an inconsistency there.

[00:08:15] Speaker 02:
In one proceeding, the samples were contaminated, so he had a problem, so what?

[00:08:19] Speaker 02:
And then he says the statement he just read about crystallization, which doesn't seem to be necessarily the same thing that he was trying to do in the action that we're dealing with here.

[00:08:32] Speaker 01:
Your Honor, the inconsistency is that in Canada, he said he didn't believe that the trance technique could separate these materials.

[00:08:43] Speaker 01:
And in Delaware, he said he actually outslided them.

[00:08:46] Speaker 02:
No, I don't think he said that TREF technique couldn't separate the materials.

[00:08:52] Speaker 02:
He said that it couldn't do this in relation to crystallization.

[00:08:58] Speaker 02:
I don't understand what he's talking about, but it's not that clear an inconsistency.

[00:09:04] Speaker 01:
Well, Your Honor, when you say he didn't say it, I have quotes around my notes.

[00:09:11] Speaker 02:
Well, where does he say that you can't separate the two?

[00:09:15] Speaker 02:
Because that's what he was saying in this action.

[00:09:17] Speaker 02:
I didn't see a clear statement to that effect.

[00:09:19] Speaker 02:
And while you're at it, Dow claims that Canadian testimony addressed the CDDI test, not separation of HDF.

[00:09:28] Speaker 01:
I want to know if that's true.

[00:09:31] Speaker 01:
Your Honor, we point out in the CDDI test, I can answer that very briefly,

[00:09:40] Speaker 01:
Will you forgive me?

[00:09:43] Speaker 01:
I think we're asking the same question.

[00:10:01] Speaker 01:
He says in the Canadian...

[00:10:11] Speaker 01:
relate, they give you sites, A30167 and 68, and they do not relate to CBBI, they relate to TRAF.

[00:10:23] Speaker 01:
In other words, that's an attorney argument, and when you look at the sites, I submit they relate to TRAF.

[00:10:30] Speaker 01:
which is exactly what Dr. Soares was using.

[00:10:34] Speaker 01:
Well, maybe so.

[00:10:35] Speaker 02:
But what he said in the other actions, I changed my mind.

[00:10:39] Speaker 02:
I think co-crystallization for some type of situation, very difficult to get, CD, TREP, perhaps impossible, I think, to get it.

[00:10:48] Speaker 02:
I have no idea what he's saying there where he talks about co-crystallization.

[00:10:53] Speaker 02:
What are you reading?

[00:10:54] Speaker 02:
The JA 22748.

[00:10:56] Speaker 02:
I changed my mind.

[00:10:58] Speaker 02:
I think co-crystallization for some type of situation, very difficult to get.

[00:11:03] Speaker 02:
CD, TRF, perhaps impossible, I think, to get it.

[00:11:07] Speaker 02:
I have no idea what he's saying by that, or why that's inconsistent with what he said here about the separation of the two.

[00:11:29] Speaker 01:
Your Honor, the notes that I have indicate we are talking

[00:11:58] Speaker 01:
Well, I had it a second ago.

[00:12:02] Speaker 01:
111 to 17, and I'm trying to find out where it is.

[00:12:36] Speaker 01:
I was reading from the amended complaint 120, which is at 21.084, which says pretty much what I said.

[00:12:46] Speaker 01:
Dr. Sawyer has further testified in the Canadian Action that he didn't believe at any time that the TREF technique he used could separate blends of materials that have similar crystallization properties, and that to do so was perhaps impossible.

[00:13:03] Speaker 01:
This is irreconcilable with this testimony of the jury in the Delaware case that he in fact actually separated off the HDF and that it was relatively easy to do so.

[00:13:13] Speaker 01:
This testimony, well, it goes on.

[00:13:17] Speaker 01:
So all I'm saying is we're relying on the amended complaint and the issue is does the amended complaint set forth a plausible case which might justify going forward and getting discovery.

[00:13:32] Speaker 01:
And all I'm saying is

[00:13:34] Speaker 01:
the, uh, the entrenchment issues involving Dr. Soares and the, am I cutting you off?

[00:13:41] Speaker 02:
Well, I just don't understand how you can allege a case of fraud based on sort of testimony, which is pretty incomprehensible on the face of it.

[00:13:52] Speaker 02:
I mean, I understand the first thing.

[00:13:53] Speaker 02:
There does seem to be an inconsistency with respect to the, the witnesses testimony in the tax case in here, but with respect to the second one, I'm just not following.

[00:14:01] Speaker 02:
I don't understand.

[00:14:02] Speaker 02:
I mean,

[00:14:03] Speaker 02:
I look at the testimony and it seems to me it's not clear on its face that it's even inconsistent.

[00:14:09] Speaker 01:
Your Honor, did you say you can see the difference in the all versus not all?

[00:14:16] Speaker 01:
Is that your point?

[00:14:18] Speaker 02:
I'm saying with respect to the witness in the tax case and here, I can understand that there's an apparent inconsistency, but I'm telling you that in the second example, the Sora's testimony or whatever it is,

[00:14:31] Speaker 02:
I look at the testimony, I look at what he said in one case and what he said in another case, and I don't know, it's not apparent to me on the face of it that there's a necessary inconsistency.

[00:14:41] Speaker 01:
Let me answer you this, Your Honor.

[00:14:44] Speaker 01:
I think there is an inconsistency, but if you don't, I've given you the inconsistencies and you and your colleagues have to decide whether they're inconsistent or whether it amounts to the level of fraud.

[00:14:58] Speaker 01:
All I'm saying is, even if we exclude that, what happened in the tax case versus what happened in Delaware, diametrically opposed, the key corporate people knew what was going on in both cases.

[00:15:12] Speaker 01:
We alleged expressly that they did so with fraud, with fraudulent intent.

[00:15:19] Speaker 01:
They were involved, they ended up hiding from us until we found it in the Canadian suit.

[00:15:26] Speaker 01:
This key document

[00:15:28] Speaker 01:
this agreement summary form, which ties it all together, which shows which people were there, which people received the contribution agreement, which people were knowledgeable what was going on in both litigations.

[00:15:40] Speaker 01:
We've got Ice Lee, who was the associate general counsel.

[00:15:43] Speaker 01:
We have Simpson, who was a lawyer under him.

[00:15:47] Speaker 01:
We have Pranuk, who was in charge of the litigation.

[00:15:51] Speaker 01:
And Simpson, I guess, was in charge of the Delaware litigation.

[00:15:55] Speaker 01:
They knew what was going on.

[00:15:56] Speaker 01:
They permitted counsel to represent to the district court, to this court, to the Supreme court, that they would not have transferred, they would not have transferred their US patents because they might lose rights.

[00:16:13] Speaker 01:
And they ended up transferring only four in the schedule B supplement, which I submit could not possibly be the correct

[00:16:21] Speaker 01:
Schedule A invited Valenzuela testimony and while the district court judge said, I won't consider it because it's extrinsic, this court in Dow 1 considered the Kate Maxwell testimony to identify Schedule B supplement and it was extrinsic evidence.

[00:16:40] Speaker 01:
The extrinsic evidence they wouldn't rely on was extrinsic evidence to determine whether Schedule A was controlling, it involved the interpretation of the agreement.

[00:16:50] Speaker 01:
We are not trying to reinterpret the agreement.

[00:16:54] Speaker 01:
All we're trying to do is show what was transferred and what was not transferred.

[00:17:01] Speaker 01:
And the Valenzuela testimony is inconsistent with what they said in this court and in Delaware and to the Supreme Court on the petition for cert.

[00:17:12] Speaker 01:
And all I'm saying is when in-house counsel knows everything that's going on and has the left hand saying X,

[00:17:19] Speaker 01:
And the right-hand saying Y exactly opposite to X, that makes out a case of fraud.

[00:17:25] Speaker 01:
We're entitled to discovery to find out a lot more of the details, which we don't have on this issue, and crumbly makes it clear that all you need is a case plausible on its face and enough to get you to the point where you can get into discovery and get the detailed facts.

[00:17:45] Speaker 00:
Thank you.

[00:17:46] Speaker 00:
The speed of your time will be for two minutes.

[00:17:48] Speaker 00:
I'll remodel if needed.

[00:18:13] Speaker 03:
Can I first deal with the story's point?

[00:18:19] Speaker 03:
First of all, he never said it was a clean separation at all in the Delaware case.

[00:18:25] Speaker 03:
In fact, he testified in both Delaware and in Canada that he separated and isolated the HDF.

[00:18:37] Speaker 03:
So in both cases,

[00:18:40] Speaker 03:
He gave the same kind of testimony.

[00:18:42] Speaker 03:
Yes, I separated and I isolated the HDF.

[00:18:46] Speaker 03:
Now, Mr. Sutter said, no, he didn't.

[00:18:50] Speaker 03:
He only said it in Delaware.

[00:18:52] Speaker 03:
And then he changed his mind.

[00:18:54] Speaker 03:
But he didn't.

[00:18:56] Speaker 03:
The testimony is replete.

[00:19:00] Speaker 03:
In both instances here in Canada, he said,

[00:19:03] Speaker 03:
Here's the HDF.

[00:19:04] Speaker 03:
For that one, I don't have to do any reproduction.

[00:19:06] Speaker 03:
I can just separate it and isolate it and measure whatever properties I have to measure.

[00:19:11] Speaker 03:
So he didn't, there's no inconsistency.

[00:19:15] Speaker 03:
And if I can, Judge, you were asking Mr. Zunner about the, perhaps impossible, but like at 3167 in the record, it's clear that he's talking about this other technique of CBBI, which does not involve any separations at all.

[00:19:33] Speaker 03:
What it does involve is whether... Well, what do you understand the testimony that I read to Mr. Donner to be?

[00:19:41] Speaker 02:
Where he says, I changed my mind, I think, tell crystallization for some type of situation, very difficult to get CD-treft, perhaps.

[00:19:51] Speaker 03:
What's he saying?

[00:19:52] Speaker 03:
I'll try to explain this to you, my understanding of it.

[00:19:55] Speaker 03:
But first of all, I changed my mind.

[00:19:57] Speaker 03:
Of course, it's got nothing to do with changing his mind between US and Canada.

[00:20:01] Speaker 03:
I understand.

[00:20:02] Speaker 03:
It's an academic paper that he had published.

[00:20:07] Speaker 03:
What he's saying is that, for example, within the H, let's say once you separate the HDF, you've got this nice curve.

[00:20:16] Speaker 03:
And they were contending that one of the important properties was CDBI, composition,

[00:20:25] Speaker 03:
composition, disposition, breath index.

[00:20:29] Speaker 03:
And so the question was, how accurate is CD-trap, not where you're separating it, how is CD-trap in trying to distinguish between some of the very, very high density molecules at the way at the high density part of that thing.

[00:20:51] Speaker 03:
And he was saying,

[00:20:52] Speaker 03:
You know, in some instances up there, you could have co-crystallization where even though one would theoretically think they might, that they should come out of different parts, they might, at those very, very high density things, they might co-crystallize.

[00:21:06] Speaker 03:
So the test that you're relying on is not accurate all the times up there.

[00:21:13] Speaker 03:
But I can certainly separate the HDF.

[00:21:15] Speaker 03:
That separation occurs down here.

[00:21:18] Speaker 03:
So the two are entirely,

[00:21:21] Speaker 03:
unrelated.

[00:21:22] Speaker 03:
And the fact of the matter is that in both the U.S.

[00:21:26] Speaker 03:
and Canada, where they finally admitted density at .93, the reason they admitted the density of .93 that stories had measured for VHGF, because this

[00:21:40] Speaker 03:
This phenomena that he was talking about occurs at much, much higher density.

[00:21:44] Speaker 03:
So they wanted to say, oh, the HDF is 0.93, so you don't have any such problem.

[00:21:48] Speaker 03:
And consequently, we don't have any problem with the CDBI test, which in both instances, both here and in Canada, was rejected as a relevant test.

[00:21:58] Speaker 02:
So what about the first example, where there seems to be an inconsistency between the Canadian and the tax proceeding in this procedure in terms of the transfer?

[00:22:10] Speaker 03:
You know, I think at best there's an inconsistency in the sense that this testimony, which had no relevance to that, and you already noted that, had no relevance to the case in Louisiana.

[00:22:28] Speaker 03:
He was saying, when did you stop calculating royalties?

[00:22:32] Speaker 03:
Well, I stopped calculating them when they transferred all the patents to this Inhingible Holy Company.

[00:22:40] Speaker 03:
So it was kind of like a, it wasn't, there was no cross-examination, there was no discussion of the contribution agreement, there was no discussion of schedules, it was just an offhand statement, yes, when they transferred everything over there, I stopped my work.

[00:22:55] Speaker 03:
I mean, if that's the matter, he wasn't doing it after that.

[00:22:59] Speaker 03:
So it was just an offhand thing.

[00:23:01] Speaker 02:
But why not, they say, why not let us have a deposition of this guy to determine

[00:23:07] Speaker 02:
whether there was something nefarious going on or it was just a mistake.

[00:23:13] Speaker 03:
Because the cases do haem, even Apotex, all the post-Beggerly cases say you can't come in and bootstrap your case by just alleging an inconsistency and then say, you give me the discovery and I'll give you the fraud.

[00:23:36] Speaker 03:
That's not allowed in the post-period legal world.

[00:23:38] Speaker 03:
Well, there's no cases.

[00:23:39] Speaker 03:
They don't cite any.

[00:23:40] Speaker 02:
Mr. Roper, let me back you up a little bit.

[00:23:42] Speaker 02:
Mr. Dunner, when asked about the account testimony, said, well, yeah, he said, I think.

[00:23:52] Speaker 02:
But then he was cross-examined, and he was very specific that everything was transferred.

[00:23:58] Speaker 03:
Is that true?

[00:23:59] Speaker 03:
He didn't say, I think, every time he answered the question.

[00:24:03] Speaker 03:
But I think you're correct.

[00:24:05] Speaker 03:
The first time he said it, he said, I think that's what happened.

[00:24:07] Speaker 03:
And I think later, it was just, he just repeated it.

[00:24:10] Speaker 03:
He didn't happen to say, I think.

[00:24:12] Speaker 03:
I mean, that's the way he was thinking.

[00:24:13] Speaker 03:
Was he pressed on cross-examination?

[00:24:15] Speaker 03:
I mean, I saw Mr. Jenner characterizing it.

[00:24:17] Speaker 03:
He was not pressed.

[00:24:18] Speaker 03:
It was not relevant to that proceeding.

[00:24:22] Speaker 03:
So it was just an offhand comment.

[00:24:24] Speaker 03:
And in fact, they had the same kind of thinking and the same kind of thought in the actual Delaware case with Roger Schwartz.

[00:24:32] Speaker 03:
when he was, when he was deposed.

[00:24:34] Speaker 03:
So, but those, vaguely, I, there's no post-beggarly case that I know of where you need, where you can come in and say, you know, here's a, here's an inconsistency.

[00:24:47] Speaker 03:
I want discovery to prove the fraud.

[00:24:49] Speaker 03:
If you give me the, if you give me the discovery out, I'll go out and prove the fraud.

[00:24:54] Speaker 03:
In fact, I don't think there's a post-beggarly case where an independent action even survived the motion to dismiss.

[00:25:00] Speaker 03:
But the point is, you can't come in and then start a big new, retry the case, in effect, on this issue, anyway, by saying, I need this covered.

[00:25:17] Speaker 03:
And the progression of this case is, in the beginning, they said there was an on-moss transfer, and consequently,

[00:25:26] Speaker 03:
his testimony is inconsistent with the interpretation of the contribution agreement.

[00:25:32] Speaker 03:
That went by the wayside.

[00:25:33] Speaker 03:
They gave that up.

[00:25:34] Speaker 03:
And then they said, OK, we'll accept the court's interpretation of the contribution agreement and the idea that you have to have a Schedule A. So they said, we agree you have to have a Schedule A. And Judge Starr said, you're saying you have to have a Schedule A?

[00:25:51] Speaker 03:
He said, yes.

[00:25:52] Speaker 03:
And then he said, and I've got one.

[00:25:55] Speaker 03:
He projected it.

[00:25:57] Speaker 03:
And he said, there it is.

[00:25:58] Speaker 03:
That's the Schedule A. That proves the fraud.

[00:26:02] Speaker 03:
And the judge started to say, are you telling me that you have to prove up that Schedule A and you're relying on it in order to satisfy your case?

[00:26:12] Speaker 03:
That's the only way you can do it?

[00:26:15] Speaker 03:
And he said, yes, that's exactly right.

[00:26:18] Speaker 02:
This sort of decides the point, I think.

[00:26:22] Speaker 02:
I mean, this is the 2009 Schedule A. OK.

[00:26:27] Speaker 03:
I'm just saying that what they now say in their reply brief is they need discovery to go and find the so-called missing Schedule A that's going to prove they're for a case.

[00:26:41] Speaker 03:
And what I'm saying is the cases that I've seen, they say, no, that's not what an independent action inequity is.

[00:26:50] Speaker 03:
And it's not a grave miscarriage of justice to have an inconsistency.

[00:26:55] Speaker 03:
That would then allow somebody to come in and say, you know, I need discovery.

[00:27:01] Speaker 03:
It is an inconsistency.

[00:27:03] Speaker 03:
There is an apparent inconsistency there to some extent, although frankly I don't even think there's much of an inconsistency when you consider that he didn't really talk about Schedule A or the Contribution Agreement and what the mechanism was at issue for determining what patents to put on.

[00:27:22] Speaker 03:
on the thing which, by the way, went from four to, I think, 300 and something by the time the relevant schedule that we're referring to actually came into being.

[00:27:37] Speaker 03:
But you can't come in, Duhain says that independent actions and equity are not, in view of the value of finality,

[00:27:50] Speaker 03:
Terminations are not a mechanism for allowing discovery to be used to establish a fraud.

[00:27:59] Speaker 03:
You're showing a fraud.

[00:28:00] Speaker 03:
And you have to actually have it.

[00:28:02] Speaker 03:
In Hazel Atlus, which they cite repeatedly as an analogous case, they had everything.

[00:28:10] Speaker 03:
Before them, they had the evidence of the attorney

[00:28:17] Speaker 03:
producing, fabricating a document, they had the evidence of a payment for the scientists to publish it and say that it was his.

[00:28:25] Speaker 03:
I mean, that's fraud.

[00:28:28] Speaker 03:
That's not this inconsistency where you have a witness testifying in a case where it was not relevant, it was not highly cross-examined, and say that consequently this

[00:28:45] Speaker 03:
case which was subject to discovery, which was subject to cross-examination of numerous people.

[00:28:53] Speaker 03:
They deposed or cross-examined three of the people who were the custodians of the schedules at Dow, who explained exactly how they had been made.

[00:29:07] Speaker 03:
They had all that discovery.

[00:29:09] Speaker 03:
They had all that discovery.

[00:29:13] Speaker 03:
The woman who actually did the search for schedules had filed a declaration and they deposed her.

[00:29:23] Speaker 03:
So there is not the grave miscarriage of justice here that Beckerley requires.

[00:29:34] Speaker 03:
And those cases say that.

[00:29:39] Speaker 03:
And in fact, Harry, the Third Circuit case hearing,

[00:29:42] Speaker 03:
is very, I think, clear that a simple inconsistency, that's not enough.

[00:29:48] Speaker 03:
You've got to have something that is totally incapable of any other interpretation, and it has to constitute fraud.

[00:29:56] Speaker 03:
So it is not enough, and we submit that there is no case under the applicable authority.

[00:30:13] Speaker 03:
And in that regard, let me point out that the Supreme Court in Beckerley makes clear that an allegation of dispositive documents was held in earlier discovery in and of itself is not permissible.

[00:30:34] Speaker 03:
In other words, just because you withheld some documents that you now say should have been produced

[00:30:42] Speaker 03:
That's not a great miscarriage of justice.

[00:30:46] Speaker 03:
I mean, that's the kind of thing that the judicial system is assumed, presumed to be able to take care of.

[00:30:56] Speaker 03:
You have full discovery under the judicial system.

[00:31:00] Speaker 03:
You have cross-examination.

[00:31:02] Speaker 03:
And we take these things seriously.

[00:31:06] Speaker 03:
And you take the judicial process seriously enough to say that, yes, the judicial process is efficient.

[00:31:12] Speaker 03:
to allow people to try their cases and figure it out.

[00:31:17] Speaker 03:
And there has been no showing here that that was just a serious violation of that.

[00:31:24] Speaker 03:
So there is nothing of the brave miscarriage of justice that beggarly requires.

[00:31:35] Speaker 03:
And

[00:31:42] Speaker 03:
I think I answered everything on stories also.

[00:31:44] Speaker 03:
At best, they have these things that are, I don't know, they're not even inconsistencies and I think that's fully explained in our brief.

[00:31:57] Speaker 03:
Okay?

[00:31:58] Speaker 03:
Thank you.

[00:32:09] Speaker 01:
I'd like to read from the amended complaint, paragraph 11, in response to a question that Judge Dike asked me, which I didn't answer very well.

[00:32:18] Speaker 01:
It goes to the heart of the pleadings, and I submit it's enough undertrombly to go to the next page.

[00:32:25] Speaker 01:
As further set forth in detail below, Dow attains a judgment in a Delaware case through fraud.

[00:32:30] Speaker 01:
Moreover, Dow, with the assistance of his in-house and outside counsel, engaged in a deliberate scheme to interfere with and to fraud the trial and appellate courts,

[00:32:38] Speaker 01:
their adjudication of delirication of merits.

[00:32:41] Speaker 01:
First, to convince the court that it had standing, Dow falsely denied that it had in 2002 transferred its patents en masse, including its U.S.

[00:32:49] Speaker 01:
patents, to a subsidiary in a state tax avoidance scheme.

[00:32:53] Speaker 01:
Dow fabricated the story that it had generally withheld its U.S.

[00:32:56] Speaker 01:
patents for the transfer.

[00:32:57] Speaker 01:
To cover its deceit, Dow deliberately hid material evidence regarding the transfer, including the documents regarding the transfer that had been submitted to the executive committee,

[00:33:07] Speaker 01:
of its board of directors which exercised the powers of the board to manage Dow between meetings of the board.

[00:33:13] Speaker 01:
Second on the merits of the imprisonment claims, Dow presented expert testimony that was on information of belief known to be false at the time it was given.

[00:33:20] Speaker 01:
The expert in question had admitted the true facts of the more recent related Canadian proceeding.

[00:33:26] Speaker 01:
Now Twombly makes it clear that, and here's a quote, a plausible case on his face does not impose a probability requirement at the pleading stage

[00:33:36] Speaker 01:
only calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of the necessary element, and the Third Circuit Wilkerson case cites that.

[00:33:46] Speaker 01:
We have cited in space, we've paragraph after paragraph, setting forth in detail, the ABB Turbo case is kind of instructive because there it was a motion to dismiss, and the court made determinations of the merits of the case

[00:34:03] Speaker 01:
at the pleading stage and in ABB Turbo, the court said that was improper and I submit it's improper here.

[00:34:10] Speaker 01:
Is this a grave miscarriage of justice under Beckerley?

[00:34:13] Speaker 01:
I submit it is.

[00:34:15] Speaker 01:
If in fact all the things that we allege in the submitted complaint are true, that is a grave miscarriage of justice to mislead three different courts, one of which is this court.

[00:34:26] Speaker 01:
As to Mr. Roper's comment that

[00:34:30] Speaker 01:
I made a statement that if the 2009 Schedule A is not the right one, then the case is over.

[00:34:39] Speaker 01:
I explained what I meant by that.

[00:34:41] Speaker 01:
He doesn't quote my later testimony where I explained exactly what I meant.

[00:34:46] Speaker 01:
If you look at a 21-490, 21-491, 21-492, you will see that I explained

[00:34:54] Speaker 01:
that all of these documents, including Schedule B Supplement, were post-suit.

[00:34:59] Speaker 01:
Every one of them was post-suit.

[00:35:02] Speaker 01:
And I said, if there's a problem with one, there's a problem with all.

[00:35:05] Speaker 01:
And the point I was making was that Schedule B Supplement couldn't possibly be the right one given the evidence that we had.

[00:35:14] Speaker 01:
And the burden of proof is on them to prove standing in any event.

[00:35:20] Speaker 01:
As to whether we had discovery,

[00:35:24] Speaker 01:
the discovery we had certainly was not adequate in the light of the Valenzuela testimony, which we didn't know about at the time.

[00:35:32] Speaker 01:
And so I think we need discovery.

[00:35:35] Speaker 01:
I think we have made out a plausible case under Trumbly.

[00:35:38] Speaker 01:
The pleading stage is not the time to deal with the merits of the case.

[00:35:42] Speaker 01:
We've made all the allegations, all the allegations we could possibly make, and those allegations are sufficient.

[00:35:48] Speaker 01:
And with that,

[00:35:51] Speaker 01:
Judge Wallach, you asked me for a site on where Valenzuela said, all, I mean all.

[00:35:57] Speaker 01:
He said that in the amended complaint at page 44, paragraph 44, 21061.

[00:36:05] Speaker 00:
Thank you.

[00:36:05] Speaker 00:
I do thank both Comply and Newspaper.