Legal Case Summary

Next case we're going to hear today is Mentor versus Wells Fargo and Mr. Smith, whenever you're ready, we'll hear from you. May it please the court. I think it might be helpful to begin with just a couple of comments about the Respa Statute and Section A, which is the primary focus of our briefs. I'm going to hearken back if I might to pages 8 to 12 of our opening brief. And those make the point essentially that this is a consumer protection statute. That Congress made the judgment in 1974 after conducting months of hearings over the period of several years that referral agreements were dangerous for consumers and were dangerous for the market for settlement services as a whole, even if consumers couldn't prove financial injury in individual cases. And as a result, the legislature imposed legally enforceable limits on industry behavior. And then they came back in 1981 and 1982. They conducted more hearings and they reached the conclusion that it wasn't just limited to financial injury for the market as a whole for consumers, but that it also had non-economic effects that it caused referral advice to be distorted, all of the things that you might expect from that. And that's why we are where we are on Section 8A. And in this case, for trial purposes, this Respa case at the defendant's insistence was split in two. The first was going to be plaintiffs' sham entity case under Section 8C of Respa. The second was going to be the question of what we contend was a $3.5 million kickback, which was paid along in Foster in 1993 for referrals. Now, as it turned out, that first trial not only decided the 8C or the sham entity case, but it also tried an essential element of our kickback or Section 8A claim. And as a result of that partial trial in Section 8A, and again, at the defendant's insistence, the court entered judgment against the plaintiffs on both of those claims. The problem as we see it is that the jury's verdict on that common issue, the question of referral, was irrational. Now, maybe that irrational outcome was the result of the defendant's naked appeal to prejudice against plaintiffs' lawyers, enclosing. Maybe it was the result of the admission of evidence that the trial court had already held, already ruled out as being unfairly prejudicial or misleading. But regardless of the reason, the plaintiffs seek today the limited relief of a new trial on that single issue, which would allow them to present their kickback claim for decision. And if I might, I'd like to start, and I'm sure the panel has questions that they forecast, I'd like to start with a review of the trial evidence on the question of referral. Because when I say the jury verdict was irrational, I mean exactly that

. Not that it was lopsided, not that they scored some points and we scored more points, but simply that it was not disputed that the class representatives, so that's Mr. and Mrs. Alboro and Ms. Mintor. This is a class action tried through them. The class representatives were referred to prosperity mortgage for loans by Logan Foster. Of course, that was the plaintiff's testimony without impeachment or cross examination. The Long and Foster agent for the Allbrows testified to the same effect. So did Mrs. Mintor's prosperity loan officer. And then what we see is probably the most important fact is that all three of them, and in fact, every single Long and Foster customer received a document authored by Long and Foster and prepared in compliance with respite, it's actually required by section 2607 C4 of the statute. Are you saying the issue of referral should not have been submitted to the jury? We can't say that, Your Honor, because we did not move under Rule 50. What we can say is that we're entitled to a new trial on it under Rice v Community Health Systems. I'm just trying to understand it because I think you initially asked for that instruction. Was that after the evidence? Did you ask for an instruction on referral after the evidence that all is overwhelming evidence? You asked for that? Your Honor, what the district court did was on April 24th, which was a week or two before trial, it required the parties to submit instructions and verdict forms. Okay? Is this after the evidence? No, Your Honor, that's that beforehand. Go ahead. And then in the middle of trial, there is continued discussion about the form of the verdict, about the form of the instructions. But when you get to that point, you've submitted a special verdict form. And so then the question is, okay, how do you take that back? And I think we make it clear, and I don't think the defendant seriously disagreed. Can you ask the court to take it back? Yeah, I understand. When you sit in and discuss the instructions with the court at the end of the trial, you say this is no longer applicable or this is applicable? Your Honor, I don't disagree with you

. What was the charge conference? There was a charge in conference. The conference occur after the evidence? It did occur after the evidence. And Your Honor, frankly, we simply never occurred to us that the jury would reach in a rational decision. And- I'm going to submit it to them. Your Honor, I understand that, but that brings me back to Rice v. Community Health Systems, okay? Where this court held, frankly, in accordance with virtually all of the other circuits, that if you don't file a rule 50 motion, which is the only way to take this back, you have to move on a rule 50 because it's an element of the claim. Rice holds consistent with everybody else that the thing you lose if you don't do that, is the power to get judgment entered in your favor. But you don't lose your right to challenge under rule 59 an irrational verdict. And we're very much like one of the parties in the case that we cite to you called Greenleaf V. Garlox, which is a case decided, I think, in the ninth circuit. And I think it said, one seven- That's exactly right. That's the price we pay, Your Honor, and that's a totally fair price. And I'm with you on that. I'm having something difficult to understand in this business of not objecting. I understand, you know, it's all there is coming up, but you ask for it. And I just don't understand the objecting part. It seems to me, I don't know if you call it an invited arrow, but it looks like to me, you ask for it. Your Honor, I understand the court's question, and I can simply say that none of the cases categorize the failure to file a rule 50 motion, which is the only thing that was available to us as a form of invited error. In fact, we're very much like the point of an case that we cite that's called Greenleaf V. Garlox. At 174 F third at page 365, where the court, despite a verdict. It would be error at all

. It would be a forefitter of a position. In other words, it's not necessarily error to submit that to the jury. It was the fact that you requested it, and then withhold it, and didn't withdraw it, and basically forfeited any objection to having the court submitted or any argument. To persuade the court may have submitted it anyway, despite your arguments. But it seems to me that you can't complain under the rules of rule 50 for the court having submitted it. In this case, right? We're not complaining under rule 50, right? We understand that we can't get judgment entered in our favor. But we are like the appealing party, one of the parties in Greenleaf V. Garlox, where the court said at 174 F third at 365, they said, given the state of record at the closing, the plaintiffs had every reason to believe that the jury, if it understood and rationally applied the jury instructions, would decide in their favor. The thing that we lose is the ability to have judgment entered in our favor. But there aren't cases out there that say, because they would be contrary to rice, the community health systems, that say you lose more than that. When you don't file your rule 50 motion, the thing you lose is the ability to have judgment entered in your favor. And consistent with rice, there's no other way to read it. That's our position on that. So you think the jury is going to rule for you, so you don't take it away from them, expecting them to rule in your favor, expecting an appellate review standard to be deferential to that jury finding. And not having done that, you're arguing that you don't lose your new trial right and hope to apply a different standard of review that more day, novo less deferential. So the question of a standard review, I think, is a very important one. And let me say a couple of things about that. First of all, the usual reason that there's great difference given on a rule 59 motion is because the trial court was there and gets to weigh the evidence and exercise discretion. If you take a close look at the decision here, there's no weighing of evidence. And the only exercise of discretion is to say, you didn't move under rule 50 and therefore I am denying your new trial motion. Now, that's a legal error. You can't say that consistently with Rice v Community Health Systems

. And if you take a close look further in rise at page 287, Rice says that when the reason that the new trial was denied is legal error, as opposed to simply a difference in how you weigh the evidence, that the standard review is denovo in that situation. So we think we meet the standard under any situation because we think that judicial admission that was made here by Mr. Veren, we think the undisputed evidence about referral, all of those add up even under the highest standard under cases like, sorry, under cases like Bristol v Bethlehem, we meet that stand. I don't agree in reading this record that this uncontroverted evidence on this referral. I think it's a complex question, especially in view of the court's instructions to the jury. There was a lot of evidence that while prosperity was made known to the borrowers, they'd made their own decisions and did their own investigation and made decisions independent of that. And that could be construed by the jury, especially in light of the judge's instruction, as not being referred by the broker, but being there making their own decisions. And they'd looked several companies, they went to lending tree and they, and then the court described it and the whole thing was explained in the notion is the weather, they were a broker or a lender and they ended up deciding that prosperity, they selected prosperity as a lender on that competition. And so I think the jury instruction can be rational. You do have that statement made by Turnian, closing our commission and you rely on that heavily, but that doesn't make the jury verdict irrational. Let me say one thing about that in turn to the admission. So with respect to that point, the jury was instructed consistent with respa. The definition of referral is in the regulations, it's in section 12, section CFR 1024.14F1, more or less. And what it says is it has to be an affirmative influence. It doesn't say it has to be the only reason, it doesn't say it has to be the sole reason. And so the fact that other influences came to bear does not make it not a referral. But there were instructions, specific instructions given by the court on this. And I don't think you've objected any of the instructions, have you? No, we're not objecting the instructions, but consistent with those instructions. And if you take a look at the form of referral, which is in the Adeniment pages 12 to 13, that's a long and foster document prepared to comply with respa, which is itself the referral, which is itself the referral. And it's a long and foster document and there's no other way to read that, other than it is compliant with respa, it complies with section 20607C4, and it affects the referral all by itself. But let me turn to the question of attorney admission

. Before you do that was the instruction given by the court consistent with the instruction you requested. On the definition of referral, I think we may have asked for a little more than that, but it was not terribly inconsistent. And we don't challenge that instruction today. With respect to the admission, you know, the admission is what it is where the statement was, there's no dispute that, and the one thing we agree with is that there was referral. That was an item for the jury to decide. And the statement was made at the end of all of the evidence. It was the first of three closing arguments by the defendant, none of whom, you know, signaled any- The lawyer may have made a misstatement, but he was teeing up another issue. He was basically saying, I'm not talking about this, I'm not talking about this. He's teeing it up. And in context, it's to say that when he makes that kind of comment to tee up another issue, is a judicial admission, which is going to deny the jury of its opportunity to find facts. That's a pretty dramatic thing. And nobody came to the court and said, ah, he confessed we want a judgment. And you didn't say that to the court at that point, did you? We did not move for judgment after the closing argument. That is true. But you're on a, what- It's now on a field to say that that judicial admission is binding, and you should get a new trial. You're on a- If you take a look at- Minding you should get a judgment. Well, you're on a- Under rice, we're entitled to a new trial. But if you look at the- At child and at hall- You missed my question, sorry. My question is, if you agree that you can't have a judgment, because you didn't have a rule 50 motion, but you can have a new trial. Yes, sir. The judicial admission is not a question of sufficiency of the evidence. Your argument on the judicial admission is basically that they've admit that issue away

. Correct. You're entitled to a matter of law, which falls under the rule 50 parameter, and can't be raised again. Your Honor, I don't see- It's not an adventure, it matters that- That's a considerate. If it is, the jury didn't hear it. Your- Your Honor, I disagree with that, because if the jury's verdict is irrational, In light of the admissions at trial, including the attorney admissions, a new trial is a perfectly appropriate remedy, because it was against the evidence. It would accept there are a lot- There's other evidence going the other way, and there's instructions to go the other way. And it seems to me that all of that can be considered by the jury In making rendering it verdict. You either get a sufficient to the evidence argument Under your procedural structure, or you can argue- The most you can argue is that that's part of the evidence that's already heard. You can't argue that that judicial admission goes further and gives you a new trial. I- I don't agree with that, and I'm not aware of any authority that says, when there's an attorney admission or a judicial admission, that it limits you only to rule 50 relief. I'm not aware of any authority to that effect. Oh, I'm not suggesting you do, but I'm suggesting it has to be taken in that way, because it- Otherwise, the only thing you can legitimately argue is that the verdict was not supported by the evidence, and that this statement by the attorney is part of the evidence that the jury considers. And if you say it's part of the evidence, you then have to still take into account all the rest of it. I disagree with that for the reason that I've just stated. If I can spend just one moment talking about the evidentiary issue and the closing argument issues, not- not to argue so much that these are- although they would justify a new trial on that basis, but to point out that these help to explain why the jury reached the erasure of the criminal verdict that it did. The error here we think was plain because the trial court went back on its grant of the motions and limine because it permitted over the top closing argument. And if you look at this courts- Well, that closing argument thing is really, I think, a part for you to make when the examination during trial, you were pressing the witnesses about calling this a bamboozle that you were bamboozled, you were puzzled. So on cross-examination of that very witness, the cross-examination says, when you closed that loan, did you feel bamboozled? No. Did you feel it was all fair? Yes. Well, what prompted you to come to the conclusion of bamboozled? I got an attorney- a letter from an attorney. Did you solicit that letter? No. And it goes on and on and develops the fact that your firm solicited the client and pointed out that they were bamboozled

. Now, when the lawyer gets a closing argument and says they really weren't effective, that's not open to talk. That's the evidence presented to the jury. I understand the court's position. And our position on that is simply that there's a dividing line, or there's supposed to be, between attacking the plaintiff's case, attacking the plaintiff's, and attacking the attorneys who brought them in and saying what was said in the closing argument here. But our point is simply this, if you look at that or the evidence about economic injury, that evidence had been ruled out flatly by the trial court. It was less. There's a door open. Which the trial court expressly ruled had not been opened. And so after conducting the 403 balancing before trial and finding in our favor, the trial court reversed itself without doing that 403 balancing, let that evidence in. Everyone knew that it was critical evidence. Everyone knew that it was flatly forbidden by multiple courts of appeal, ruling on the respostatute, and yet let it back in. And so when we look at this irrational verdict on referral, you have to try and ask relevant. Isn't that relevant? By the way, I see I'm over, but I'm asking you a question. Isn't that relevant to whether the borrowers were bamboozled or misled or deceived or whatever the words you used? It goes not to just their damage. It goes to their reaction to this loan, whether they were mistreated, whether there was misrepresentations, deception, and all of that, you tried to bring out. And it seems to me at that point when they come back and say, you know, we weren't really hurt, we were satisfied, we got the loan we paid for, the fees were fine. And then the correspondence with the attorneys comes out. I don't quite follow why it isn't relevant all of that. Your Honor, that is exactly the argument that the defendant's made to the trial court. And that is exactly the argument which he rejected, which he rejected. And if you look at the examination of the plaintiffs, for example, Mr. Albrose said, I feel I was cheated because no one told me that Wells Fargo was pulling all the strings here

. And he later testified not in an economic or not in a monetary sense, but I feel that I was lied to. I was cheated for that reason. That was the evidence in front of the district court. It exercised its discretion, said the door wasn't opened, and yet it permitted that evidence to come in. And then it became the centerpiece of closing argument, and then you get the result that we got. When you come back, speak to the banks. Happy to do it, Dr. Hunter. Thank you. Mr. Jay. Thank you, Your Honor. I'm William Jay on behalf of all the defendants in this case. I'd like to begin with a point that Mr. Smith made about the price that they paid, that the plaintiffs played by not filing a rule 50 motion. It's more than just not being able to get a judgment in their favor. This court's decisions in Bristol steel and in nickels make clear that you pay steeper price than that by not filing a neutral motion. You don't get to substitute through the avenue of a rule 59 motion. The avenue for searching review of the submissions to the evidence that you would get under rule 50. You just don't get to do that. And if you look at the rice case that Mr. Smith cited, you know, I have a dozen times, you will see that rule 59 is not a free pass

. It's not a way of bringing up errors that you've already forfeited. In fact, in the rice case itself, there was a jury instruction issue. The party had not objected to that jury instruction. They couldn't get a new trial on that jury instruction by raising this in a post-judgment rule 59 motion because that was forfeited. Here we have not just a forfeiture but a waiver. As the court's colloquial with Mr. Smith as brought out, the plan is proposed question three. They had ample opportunity to change question three and judge when I like to spell out a little bit more detail on the timing. Not only was there a charging conference, the court proposed the verdict form after much, much, but not all the evidence was in. The parties filed their proposed changes to that verdict form. They also objected to the, to various aspects of the jury instructions, but the plan is filed no objection to this. The final objections that the verdict form came in on the mornings of closing. After closing, that afternoon and again the next morning, we have more wrangling between the parties about changes that need to be made to the jury instructions in light of contensions that were made during the closing. There were two written filings. There was two colloquies before the district judge. The plan is never set a word about the need to take this from the jury. If they had wanted to, there are two aspects. If you look at joint appendix 1735 and 1739, two aspects of the plan is case where the judge instructed the jury. I've determined that these are uncontroverted or words to that effect. And so you need not look at that. So that's the, whether the mortgages in question are federally related and whether the affiliated business arrangement in question meets certain aspects of the federal definition. The judge says you don't need to consider that

. Planets could have asked for that kind of instruction. They could have made any number of proposed changes to the interrogatory. They did nothing. They waited to see what the jury would do. I think it's a pretty strong statement you made on argument. So you said, I think the only thing I agree for sure is that long and foster did refer the name plaintiffs to prosperity. There's no dispute about that. That's pretty strong stuff. Well, Your Honor, there's no dispute about that. And the issue is getting ready to go to the jury. Your Honor, I think you need to look at the paragraph two paragraphs before the paragraph after as this court caution. I would like to look at the context, but I tell you what, even standing alone, I will you look at it. That's pretty strong stuff there. There's no dispute about that. That sort of added language there. I'm just saying it's pretty strong. And I do see, potentially I'm not understanding why there was no objection or you indicated no statement to have the court to go ahead and direct the verdict on that particular issue in light of that statement. Because it looks like you were primed to say I agree. It just didn't happen. So I don't, I mean, that's a pretty strong statement. Well, I'd like to address the statement, but let me pick up on your second point as well, which is that nothing was said. Nothing was said when, you know, after all, this is one group of defendants lawyer. Two other groups of defendants are going to stand up and close separately. Nothing was said at a time when those defendants could have said, wait a minute, we don't agree with that. You know, as the six circuits said in the Harrison case, it is important, you know, to pay attention to the not just the context, but the opportunity to explain and qualify. What did the, if you bring it up, if the other side brings it up and says this is a judicial admission, then the lawyers, and here the lawyers for the other parties would have an opportunity to explain and qualify, explain whether they agree with it, make any qualifications that are necessary. There was no statement. And so the district court applying its discretion reasonably concluded that it occurred to no one at the trial that this was a judicial admission. But let's talk about the state. That's not argued after this. They came back to, they bring this back up. And I mean, it's like to me, it was a nice thing to come back and say, well, that issue was off the table. Was that done? And there was a rebuttal closing. There was no mention made of statement. I don't, I don't believe so. So, but the statement itself, you have to assess it in context as this court said in the fraternal order of police case when reviewing judicial admissions. And the context sensitivity is exactly why it is as far as I can tell, I found no case. So the context is Mr. Varan is talking about to the jury about their need to use their own recollection of what the testimony had been. Not just to go on what Mr. Gordon in his opening closing for the plaintiffs had said, he said, it is your job to weigh what happened here. I have a lot of differences and differences of recollection, differences in what was said. He then makes the statement that we're talking about here. Now, Mr

. Two other groups of defendants are going to stand up and close separately. Nothing was said at a time when those defendants could have said, wait a minute, we don't agree with that. You know, as the six circuits said in the Harrison case, it is important, you know, to pay attention to the not just the context, but the opportunity to explain and qualify. What did the, if you bring it up, if the other side brings it up and says this is a judicial admission, then the lawyers, and here the lawyers for the other parties would have an opportunity to explain and qualify, explain whether they agree with it, make any qualifications that are necessary. There was no statement. And so the district court applying its discretion reasonably concluded that it occurred to no one at the trial that this was a judicial admission. But let's talk about the state. That's not argued after this. They came back to, they bring this back up. And I mean, it's like to me, it was a nice thing to come back and say, well, that issue was off the table. Was that done? And there was a rebuttal closing. There was no mention made of statement. I don't, I don't believe so. So, but the statement itself, you have to assess it in context as this court said in the fraternal order of police case when reviewing judicial admissions. And the context sensitivity is exactly why it is as far as I can tell, I found no case. So the context is Mr. Varan is talking about to the jury about their need to use their own recollection of what the testimony had been. Not just to go on what Mr. Gordon in his opening closing for the plaintiffs had said, he said, it is your job to weigh what happened here. I have a lot of differences and differences of recollection, differences in what was said. He then makes the statement that we're talking about here. Now, Mr. Gordon had said in his opening at page 36, he had recollected back to the plaintiffs' testimony about their being referred. Now, the meaning of the word referred is a point that I want to come back to in a minute because as Judge Neem Reyers alluded to, there's a specialized meaning under respa. And there's the way that people talk in ordinary English. They're not the same, and this is very important for this point. But so, Mr. Varan is saying, okay, I, you know, I agree with that. There's no dispute about that. But a lot of the other things, then he begins talking about Mr. Fitzgibbon, who was the plaintiffs' expert. I don't quite recall Mr. Fitzgibbon's testimony coming off as Mr. Gordon described, and he's off onto Mr. Fitzgibbon. So, this is not a judicial admission. It occurred to no one at the trial that it was a judicial admission. It's not raised until 13 days later after the jury has come back with its verdict. We think that that's ample basis for the judge's decision not to treat this as a judicial admission. That's a discretionary judgment that the this court reviews, definitely under the myer case, there's no abusive discretion here. Let me pass for a second on to the economic injury point that Mr. Smith brought up toward the very end. The most important point I can make about the economic injury point is that there was a clear instruction to the jury that is almost verbatim the same as the plaintiffs proposed jury instruction that says you don't have to consider whether there was an overcharge or other economic injury to the plaintiffs. That appears at in the joint appendix at 1733

. Gordon had said in his opening at page 36, he had recollected back to the plaintiffs' testimony about their being referred. Now, the meaning of the word referred is a point that I want to come back to in a minute because as Judge Neem Reyers alluded to, there's a specialized meaning under respa. And there's the way that people talk in ordinary English. They're not the same, and this is very important for this point. But so, Mr. Varan is saying, okay, I, you know, I agree with that. There's no dispute about that. But a lot of the other things, then he begins talking about Mr. Fitzgibbon, who was the plaintiffs' expert. I don't quite recall Mr. Fitzgibbon's testimony coming off as Mr. Gordon described, and he's off onto Mr. Fitzgibbon. So, this is not a judicial admission. It occurred to no one at the trial that it was a judicial admission. It's not raised until 13 days later after the jury has come back with its verdict. We think that that's ample basis for the judge's decision not to treat this as a judicial admission. That's a discretionary judgment that the this court reviews, definitely under the myer case, there's no abusive discretion here. Let me pass for a second on to the economic injury point that Mr. Smith brought up toward the very end. The most important point I can make about the economic injury point is that there was a clear instruction to the jury that is almost verbatim the same as the plaintiffs proposed jury instruction that says you don't have to consider whether there was an overcharge or other economic injury to the plaintiffs. That appears at in the joint appendix at 1733. Mr. Smith reply brief doesn't address that instruction at all. Mr. Smith, I understand he didn't have a lot of time to address it this morning. He hasn't said why the jury should be presumed not to have followed that clear instruction. What in fact happened on economic injury? There is an expert that the defense had proposed, Dr. Corschein. The judge wouldn't let her testify. He stuck to that ruling throughout the trial. That testimony was the basis of the rule 403 discussion. That's clear if you look at the motion limited decision which is in the addendum to the plaintiffs' blue brief. That decision is what he says would be, has so little probative value would be outweighed by the danger of delay or confusing the jury or potentially other things. However, that doesn't mean that this point, that the four questions that were asked, one to Ms. Mintor, one to Mr. Albro, one to Joe Rogers, one to Randy Crout, doesn't mean that those four questions were out of bounds and certainly doesn't mean that the judge had ever said that they were so prejudicial that they violated rule 403. The judge himself explained this on the record at, believe page 1592, where he said that's not the same, sorry, 1590, where he says that's not the same thing as letting Dr. Corschein testify. That is the ruling that he stuck to when the defendant asked him to let her testify on the grounds of opening the door. He said no, they haven't opened the door to that and he wouldn't allow her to testify. He stuck to that ruling. It's a significant point that Mr. Albro testified not just that he felt taken and cheated

. Mr. Smith reply brief doesn't address that instruction at all. Mr. Smith, I understand he didn't have a lot of time to address it this morning. He hasn't said why the jury should be presumed not to have followed that clear instruction. What in fact happened on economic injury? There is an expert that the defense had proposed, Dr. Corschein. The judge wouldn't let her testify. He stuck to that ruling throughout the trial. That testimony was the basis of the rule 403 discussion. That's clear if you look at the motion limited decision which is in the addendum to the plaintiffs' blue brief. That decision is what he says would be, has so little probative value would be outweighed by the danger of delay or confusing the jury or potentially other things. However, that doesn't mean that this point, that the four questions that were asked, one to Ms. Mintor, one to Mr. Albro, one to Joe Rogers, one to Randy Crout, doesn't mean that those four questions were out of bounds and certainly doesn't mean that the judge had ever said that they were so prejudicial that they violated rule 403. The judge himself explained this on the record at, believe page 1592, where he said that's not the same, sorry, 1590, where he says that's not the same thing as letting Dr. Corschein testify. That is the ruling that he stuck to when the defendant asked him to let her testify on the grounds of opening the door. He said no, they haven't opened the door to that and he wouldn't allow her to testify. He stuck to that ruling. It's a significant point that Mr. Albro testified not just that he felt taken and cheated. You come back to page 95 of the transcript of his testimony. The question is taken and cheated on the price. And he says yes. So it is that that opened that allowed this to come in. Only after it came in, only have this question about whether he got essentially whether he got a good deal. Only after that line of questioning did the colloquy that Mr. Smith alluded to come in. That had nothing, that didn't close the door. It didn't establish that he wasn't talking about economic injury. In fact, he had made this statement about taking and cheated on the price. Let me come back to the definition of referral under arrest. I think this is very important. Not just for the judicial admission argument, but the whole point about why this jury's verdict is entirely consistent with the evidence. It's entitled to the most differential review by this court. And it certainly passes the standard set out in Bristol steel. Is there any evidence to support the jury's verdict irrespective of its sufficiency? The respite definition is in the jury instructions at 1734 to 35 says that you got to show a referral. That's not just a recommendation. If I say to you, I recommend that you try this settlement service provider. It's not a referral. Two things have to happen. It has to have the effect of affirmatively influencing person's choice of a settlement service provider. And they've got to pay for the settlement service

. You come back to page 95 of the transcript of his testimony. The question is taken and cheated on the price. And he says yes. So it is that that opened that allowed this to come in. Only after it came in, only have this question about whether he got essentially whether he got a good deal. Only after that line of questioning did the colloquy that Mr. Smith alluded to come in. That had nothing, that didn't close the door. It didn't establish that he wasn't talking about economic injury. In fact, he had made this statement about taking and cheated on the price. Let me come back to the definition of referral under arrest. I think this is very important. Not just for the judicial admission argument, but the whole point about why this jury's verdict is entirely consistent with the evidence. It's entitled to the most differential review by this court. And it certainly passes the standard set out in Bristol steel. Is there any evidence to support the jury's verdict irrespective of its sufficiency? The respite definition is in the jury instructions at 1734 to 35 says that you got to show a referral. That's not just a recommendation. If I say to you, I recommend that you try this settlement service provider. It's not a referral. Two things have to happen. It has to have the effect of affirmatively influencing person's choice of a settlement service provider. And they've got to pay for the settlement service. So the plaintiffs have repeatedly asserted that I and Mr. Smith said it again this morning that the piece of paper, the affiliated business arrangement disclosure that that constitutes and memorializes the disclosure. That's not right. We can see that that's not right from the respite statute itself. The respite statute itself says that that disclosure has to come at or before the time of referral. That's in section 8c4 of respite. If it constitutes the referral, it could never come before the time of referral. The reason that we have this somewhat confusing situation is the use of the word referral in ordinary English. The kind of ordinary English that we use on a consumer disclosure. But the jury was told in connection with the question they were answering that referral meant to the respite referral, which had to have not only the effect that had to be paid for. And the evidence was that these persons went out and made their own decisions on it. And they were quite proud of that fact. That's absolutely right. So both all of the name planists shopped around. This is brought out extensively during their testimony that Mr. Albro in particular, at least 15, got information from at least 15 lenders through lending tree.com. He provided information to more than one of them. In fact, he'd gotten from his long and foster agent referrals not just to prosperity, but also to Bank of America. So there's ample evidence in the record to conclude that even one of the including that even one of the named planists was not referred would be enough because the interrogatory asks were the named planists plural referred by long and foster. And so the Albro is in addition, there's evidence in the record that they got a $5,000 credit against their closing costs and the amount of fees paid to prosperity $777. Jury could conclude that the credit is enough to establish they didn't pay for their settlement service

. So the plaintiffs have repeatedly asserted that I and Mr. Smith said it again this morning that the piece of paper, the affiliated business arrangement disclosure that that constitutes and memorializes the disclosure. That's not right. We can see that that's not right from the respite statute itself. The respite statute itself says that that disclosure has to come at or before the time of referral. That's in section 8c4 of respite. If it constitutes the referral, it could never come before the time of referral. The reason that we have this somewhat confusing situation is the use of the word referral in ordinary English. The kind of ordinary English that we use on a consumer disclosure. But the jury was told in connection with the question they were answering that referral meant to the respite referral, which had to have not only the effect that had to be paid for. And the evidence was that these persons went out and made their own decisions on it. And they were quite proud of that fact. That's absolutely right. So both all of the name planists shopped around. This is brought out extensively during their testimony that Mr. Albro in particular, at least 15, got information from at least 15 lenders through lending tree.com. He provided information to more than one of them. In fact, he'd gotten from his long and foster agent referrals not just to prosperity, but also to Bank of America. So there's ample evidence in the record to conclude that even one of the including that even one of the named planists was not referred would be enough because the interrogatory asks were the named planists plural referred by long and foster. And so the Albro is in addition, there's evidence in the record that they got a $5,000 credit against their closing costs and the amount of fees paid to prosperity $777. Jury could conclude that the credit is enough to establish they didn't pay for their settlement service. Now the disclosure form, it does say we are referring you, but this is the ordinary English versus rest English point that I've come back to. That we are referring you language prescribed by the government. It's what you have to qualify for a safe home. I'm just confusing the matter because you're using referring in the evidence and in the record and the documents, the issue before the court is whether the Jury verdict of referral was rational and the court in giving them that question explained the respite definition explicitly in the instruction. And said you must apply this definition. It doesn't so the jury is instructed and we presume they follow that instruction. They're constructed to look for those elements and deciding whether they were the referral. That's exactly right. I don't understand why you're going and talking about all these other English referrals. I simply want to respond to the idea that here's the Mr. Smith has said here's the document. Here's the document. This was the referral. It wasn't the referral. I'll move on from that. So the only other point that I want to make sure and talk about is the point about the closing. Judge Neemar, I think you brought out in the colloquy with Mr. Smith that the point that these plaintiffs were perfectly happy with their loans was until they got a letter from counsel. That was the subject of extensive testimony cross examination, both Ms. Minter and Mr. Alborough. Council is entitled to refer to that evidence

. Now the disclosure form, it does say we are referring you, but this is the ordinary English versus rest English point that I've come back to. That we are referring you language prescribed by the government. It's what you have to qualify for a safe home. I'm just confusing the matter because you're using referring in the evidence and in the record and the documents, the issue before the court is whether the Jury verdict of referral was rational and the court in giving them that question explained the respite definition explicitly in the instruction. And said you must apply this definition. It doesn't so the jury is instructed and we presume they follow that instruction. They're constructed to look for those elements and deciding whether they were the referral. That's exactly right. I don't understand why you're going and talking about all these other English referrals. I simply want to respond to the idea that here's the Mr. Smith has said here's the document. Here's the document. This was the referral. It wasn't the referral. I'll move on from that. So the only other point that I want to make sure and talk about is the point about the closing. Judge Neemar, I think you brought out in the colloquy with Mr. Smith that the point that these plaintiffs were perfectly happy with their loans was until they got a letter from counsel. That was the subject of extensive testimony cross examination, both Ms. Minter and Mr. Alborough. Council is entitled to refer to that evidence. So at most all we're talking about is the phrase follow the money. Now if you look at the context of the closing arguments in this case, Mr. Gordon in his opening closing for the plaintiffs use that phrase nine times. Mr. Varan, next closing, six times, Mr. Permit, next closing, three times. So Mr. Bourgeois, the last person to stand up on the defense side to close, he uses that phrase. He's just tying into a phrase that's being used all morning or all day. But the point that he's making is one that's supported by the evidence. And I think that there's certainly no no effect on the question that the plaintiffs say they want a new trial on. They say they want a new trial only on question three referral. So in order to show prejudice from one of these evidentiary errors, trial errors, or other matters that are within the court's discretion, they've got to show not only that the court abuse its discretion, but that there was a prejudicial impact on the jury's answer to the question whether long and foster referred within the meeting of respite the plaintiffs to prosperity. I think if the last the court has further questions. What about speaking on that binks issue? Oh yeah, issue is to whether what properly dismissed those claims. You're on her. First point about Ms. Binks's claims she had two under section 8A section 8C4. If her claims are still live, then her 8C4 claim is live too. It's not been disposed of and this court doesn't have a pellet jurisdiction over the over the case. Now we don't think that's the case. We think that what happened was judge Nickerson said, okay, we've had a trial

. So at most all we're talking about is the phrase follow the money. Now if you look at the context of the closing arguments in this case, Mr. Gordon in his opening closing for the plaintiffs use that phrase nine times. Mr. Varan, next closing, six times, Mr. Permit, next closing, three times. So Mr. Bourgeois, the last person to stand up on the defense side to close, he uses that phrase. He's just tying into a phrase that's being used all morning or all day. But the point that he's making is one that's supported by the evidence. And I think that there's certainly no no effect on the question that the plaintiffs say they want a new trial on. They say they want a new trial only on question three referral. So in order to show prejudice from one of these evidentiary errors, trial errors, or other matters that are within the court's discretion, they've got to show not only that the court abuse its discretion, but that there was a prejudicial impact on the jury's answer to the question whether long and foster referred within the meeting of respite the plaintiffs to prosperity. I think if the last the court has further questions. What about speaking on that binks issue? Oh yeah, issue is to whether what properly dismissed those claims. You're on her. First point about Ms. Binks's claims she had two under section 8A section 8C4. If her claims are still live, then her 8C4 claim is live too. It's not been disposed of and this court doesn't have a pellet jurisdiction over the over the case. Now we don't think that's the case. We think that what happened was judge Nickerson said, okay, we've had a trial. What happens now? Tell me what happens now on the 8A claims, for example, and the plaintiffs and the defense submitted a joint letter but with different different positions about what should what should happen then? No mention of Ms. Binks. And then the plaintiffs proceed to file their neutral motion in which they acknowledge that the jury's verdict binds the names of the plaintiffs in their attempt to pursue their section 8A claim. What this judgment does because the judgment says name plain. I'm not sure the verdict does because she wasn't even in the courtroom. I mean it wasn't about her. She was not a member of the class that went to trial. There's no doubt about that. I know that in that instance but once the judge entered that that judgment and then if not on the folks in the courtroom would add this name plain. Well, you're not. But no one said anything. No, right. No one said anything you're on. As particularly when there was ample opportunity the judge has said what do I do now? What should happen now? I submit that if if because Ms. Binks does have an 8A claim, you know she I just like to keep talking about 8A and 8C and I don't read the statement. I'll kick that claim if you like your honor. 8C is nothing more than articulation of what 8A said. We can we entirely agree with that your honor. You know if that were before the court. Yes, but if she wanted me like it was basically abandoned myself. But the Binks claim her claims were beyond the statute of limitations and the only way she gets back in is if somebody initiates a hearing of some kind on told. Right

. What happens now? Tell me what happens now on the 8A claims, for example, and the plaintiffs and the defense submitted a joint letter but with different different positions about what should what should happen then? No mention of Ms. Binks. And then the plaintiffs proceed to file their neutral motion in which they acknowledge that the jury's verdict binds the names of the plaintiffs in their attempt to pursue their section 8A claim. What this judgment does because the judgment says name plain. I'm not sure the verdict does because she wasn't even in the courtroom. I mean it wasn't about her. She was not a member of the class that went to trial. There's no doubt about that. I know that in that instance but once the judge entered that that judgment and then if not on the folks in the courtroom would add this name plain. Well, you're not. But no one said anything. No, right. No one said anything you're on. As particularly when there was ample opportunity the judge has said what do I do now? What should happen now? I submit that if if because Ms. Binks does have an 8A claim, you know she I just like to keep talking about 8A and 8C and I don't read the statement. I'll kick that claim if you like your honor. 8C is nothing more than articulation of what 8A said. We can we entirely agree with that your honor. You know if that were before the court. Yes, but if she wanted me like it was basically abandoned myself. But the Binks claim her claims were beyond the statute of limitations and the only way she gets back in is if somebody initiates a hearing of some kind on told. Right. She right there's no dispute. I mean because she was the representative of the tolling class that she the only way that she could pursue these respical aims is if she gets the benefit of equitable tolling she didn't show the necessary diligence you know that and they didn't even pursue it after that. That's such a point of out from your question. The judge just entered a verdict. Nobody objected. I mean a judgment it closed out everything and if somebody said oh we still have this to do. It seems me they could have raised it. I think that's absolutely right. It's a little messy though isn't it? Well I think if the judge had done it summarily without giving everyone the opportunity to opine about what should happen next or perhaps if she were separately represented there were and her council her separate council had no opportunity to speak maybe that would be messier you know but here if if there were written opinion rejecting her claims and saying that they're untimely and he's granting judgment on that basis that certainly would be neither but I think that there's certainly no abusive discretion in closing out the case as Judge Nickerson did. And ultimately whether the standard here is invited error or plane error or just very heightened abuse of discretion review under Bristol steel the plaintiffs have a very high hill to climb we submit that they have not climbed it. Do we have to answer that bank's question? Do you have to answer the bank? Is that really before? I mean at this point she hasn't done anything until she does something to determine if she in fact is part of this other group? I think respectfully you know I would submit that that might be a question for Mr. Smith because while they've raised it on appeal and their blue brief we responded in our red brief there's not a word about it in their reply and I don't know I don't know whether they're still pressing it but we submit that if you do address it that the judge has discretion just to deem those claims both the 8a claim and the other claim abandoned and that's why we have a final judgment here thank you thank you Your Honour. Let me address a bank's first in response to your your question. The first is that the way the district court dealt with us was to tell the parties that her claim with others had been severed from the case and that's a joint appendix page 1269 it's administrative order number five in the case stating that those claims have been severed the second point is in terms of the statute of limitations that that's an interesting argument but it's one for the district court to make in the first instance and not for this court to in effect enter summary judgment or hear a summary judgment motion that hasn't been ventilated at all in the district court. Do we have to answer this question I mean until it comes up sounds like to me that's when you make your next move and then it'll come up and do that. I think it's I think it's important if the district court is going to get for you know the correct road map for a programmer you didn't say anything about it in the judgment just use this term I understand that but we took the appeal on that basis. Yes for an answer you might not well. No you're on I look whatever the district court does it does I mean we we took an appeal because her claim had been adjudicated in a way that was that didn't make any sense to us and and we appealed immediately upon the the entry of judgment on that on August 28th that that was the order position before us is that her claim has been adjudicated not that it's out there not tended to but it on its face it says it has been adjudicated because she she had an individual eight a claim that that's what that order says and so we can't unring that bell that's why we're if it's an eight eight claim and that was resolved the eight eight claims in that case the polling issue becomes move but they weren't she was not part of the timely class she was part of the polling class so she couldn't have had her claim adjudicated in the trial that took place last year okay with respect to the the question on rule 50 and what happens next I want to suggest let me just go back to that one second could could we can screw the severance for trial of just the polling issue and not the eight a issue as long as there's a clear instruction of the district court so so that no I'm talking about the record when the judge said we're not going to do banks now we're going to try that another time yes was the court referring to the whole case or was of course referring just to the polling evidence in other words she still had in common with everybody else eight eight yes she didn't have in common the tolling issue which would be move facts correct now if the eight a is resolved against everybody the court could well have thought that now I've resolved everybody the tolling class is no longer it's moved the tolling class was not part of the adjudication in the trial held last year it was only about the timely class so it couldn't have bound her it depends on what the scope of that severance was if it was just on the tolling issue if I were the district judge I would say we're going to try all eight a claims and then I'm to say with respect to banks and the people in her class yes if you win on the eight a we're going to have a separate hearing on tolling just find out whether they can get the benefit of the eight a ruling but since the eight a ruling was lost it becomes moved the doesn't matter with the only reason that eight a was lost was because of the effect of question number three on the the timely class I understand I'm just saying right now we have a judgment which purports to adjudicate her claim we don't think that that's proper for the reasons that I've stated but let me say just a couple of things about rule 50 the first point is I think you have to come back to rice because rice says very clearly that what the price you pay is and the price you pay is that you can't get judgment entered in your favor the standard of review can be higher if you look at cases like Bristol but in cases like Bristol there was a wing of the evidence there was an exercise of discretion and there was a need for a new trial altogether in this case there's all you have to do is go on to the second case the kickback case that everybody intended to be tried separately and that's why the the analysis under rule 59 we believe should be different here with respect to the question about whether this attorney admission comes in I hear Mr. Jay say that there has to be an objection why shouldn't why shouldn't why didn't we raise the issue but if you look at this court's decision in my RV Berkshire you don't have to raise it itself executing unless it's ambiguous unless it's ambiguous and that's a case like Harrison where it happened at the beginning of the trial and it wasn't clear here it happens at the end of the trial and we submit that it's very clear what was intended which was to admit the obvious in front of the jury in order to move on to other issues was it was the mission by one lawyer buying all the rest of them well first of all only long and foster could have affected a referral so when Mr. Varan admitted it he's the only person who had skin in that game the second thing is he's the first of the three defendants who closed there wasn't a peep out of the other two and the reason is that just as he appeared here for all of the defendants they divided up the closing the each addressed different issues they each had different things to say his job was to talk about respite he spoke to that issue then there is a question but then the next one talked about prosperity and then the last one talked about the plaintiffs and made the attack on plaintiffs council which we've discussed before so in that sense it plainly binds all three of them on the question of referral and I see my time is up if I can have 10 seconds to address that you've got it okay the form that is at pages 12 to 13 of the addendum is a form that is required by respite as Mr. J said and it's required by respite because they have to document when the referral happens this is a long and foster form long and foster handed it out to everybody who came through their doors that was the testimony of trial and it doesn't matter who handed out whether it is an employee or an independent contractor if you left them in a bin at the door it's something that respite requires to document the fact that a referral has occurred and even though you might have shopped around and even though you might have compared prices the burden under respite is simply to show that there was an oral or a written act which had the effect of affirmatively influencing the choice that's the definition of referral that's in the regulations at 12 CFR 1240 consistent with that definition and consistent with the respite instruction the jury was given on referral we submit that a rational jury could not have found otherwise because you have something that is intended to define exactly what the jury is deciding whether there is a referral under respite thank you very much we'll thank you for your in court for the day tomorrow morning and then come down in a press conference

Next case we're going to hear today is Mentor versus Wells Fargo and Mr. Smith, whenever you're ready, we'll hear from you. May it please the court. I think it might be helpful to begin with just a couple of comments about the Respa Statute and Section A, which is the primary focus of our briefs. I'm going to hearken back if I might to pages 8 to 12 of our opening brief. And those make the point essentially that this is a consumer protection statute. That Congress made the judgment in 1974 after conducting months of hearings over the period of several years that referral agreements were dangerous for consumers and were dangerous for the market for settlement services as a whole, even if consumers couldn't prove financial injury in individual cases. And as a result, the legislature imposed legally enforceable limits on industry behavior. And then they came back in 1981 and 1982. They conducted more hearings and they reached the conclusion that it wasn't just limited to financial injury for the market as a whole for consumers, but that it also had non-economic effects that it caused referral advice to be distorted, all of the things that you might expect from that. And that's why we are where we are on Section 8A. And in this case, for trial purposes, this Respa case at the defendant's insistence was split in two. The first was going to be plaintiffs' sham entity case under Section 8C of Respa. The second was going to be the question of what we contend was a $3.5 million kickback, which was paid along in Foster in 1993 for referrals. Now, as it turned out, that first trial not only decided the 8C or the sham entity case, but it also tried an essential element of our kickback or Section 8A claim. And as a result of that partial trial in Section 8A, and again, at the defendant's insistence, the court entered judgment against the plaintiffs on both of those claims. The problem as we see it is that the jury's verdict on that common issue, the question of referral, was irrational. Now, maybe that irrational outcome was the result of the defendant's naked appeal to prejudice against plaintiffs' lawyers, enclosing. Maybe it was the result of the admission of evidence that the trial court had already held, already ruled out as being unfairly prejudicial or misleading. But regardless of the reason, the plaintiffs seek today the limited relief of a new trial on that single issue, which would allow them to present their kickback claim for decision. And if I might, I'd like to start, and I'm sure the panel has questions that they forecast, I'd like to start with a review of the trial evidence on the question of referral. Because when I say the jury verdict was irrational, I mean exactly that. Not that it was lopsided, not that they scored some points and we scored more points, but simply that it was not disputed that the class representatives, so that's Mr. and Mrs. Alboro and Ms. Mintor. This is a class action tried through them. The class representatives were referred to prosperity mortgage for loans by Logan Foster. Of course, that was the plaintiff's testimony without impeachment or cross examination. The Long and Foster agent for the Allbrows testified to the same effect. So did Mrs. Mintor's prosperity loan officer. And then what we see is probably the most important fact is that all three of them, and in fact, every single Long and Foster customer received a document authored by Long and Foster and prepared in compliance with respite, it's actually required by section 2607 C4 of the statute. Are you saying the issue of referral should not have been submitted to the jury? We can't say that, Your Honor, because we did not move under Rule 50. What we can say is that we're entitled to a new trial on it under Rice v Community Health Systems. I'm just trying to understand it because I think you initially asked for that instruction. Was that after the evidence? Did you ask for an instruction on referral after the evidence that all is overwhelming evidence? You asked for that? Your Honor, what the district court did was on April 24th, which was a week or two before trial, it required the parties to submit instructions and verdict forms. Okay? Is this after the evidence? No, Your Honor, that's that beforehand. Go ahead. And then in the middle of trial, there is continued discussion about the form of the verdict, about the form of the instructions. But when you get to that point, you've submitted a special verdict form. And so then the question is, okay, how do you take that back? And I think we make it clear, and I don't think the defendant seriously disagreed. Can you ask the court to take it back? Yeah, I understand. When you sit in and discuss the instructions with the court at the end of the trial, you say this is no longer applicable or this is applicable? Your Honor, I don't disagree with you. What was the charge conference? There was a charge in conference. The conference occur after the evidence? It did occur after the evidence. And Your Honor, frankly, we simply never occurred to us that the jury would reach in a rational decision. And- I'm going to submit it to them. Your Honor, I understand that, but that brings me back to Rice v. Community Health Systems, okay? Where this court held, frankly, in accordance with virtually all of the other circuits, that if you don't file a rule 50 motion, which is the only way to take this back, you have to move on a rule 50 because it's an element of the claim. Rice holds consistent with everybody else that the thing you lose if you don't do that, is the power to get judgment entered in your favor. But you don't lose your right to challenge under rule 59 an irrational verdict. And we're very much like one of the parties in the case that we cite to you called Greenleaf V. Garlox, which is a case decided, I think, in the ninth circuit. And I think it said, one seven- That's exactly right. That's the price we pay, Your Honor, and that's a totally fair price. And I'm with you on that. I'm having something difficult to understand in this business of not objecting. I understand, you know, it's all there is coming up, but you ask for it. And I just don't understand the objecting part. It seems to me, I don't know if you call it an invited arrow, but it looks like to me, you ask for it. Your Honor, I understand the court's question, and I can simply say that none of the cases categorize the failure to file a rule 50 motion, which is the only thing that was available to us as a form of invited error. In fact, we're very much like the point of an case that we cite that's called Greenleaf V. Garlox. At 174 F third at page 365, where the court, despite a verdict. It would be error at all. It would be a forefitter of a position. In other words, it's not necessarily error to submit that to the jury. It was the fact that you requested it, and then withhold it, and didn't withdraw it, and basically forfeited any objection to having the court submitted or any argument. To persuade the court may have submitted it anyway, despite your arguments. But it seems to me that you can't complain under the rules of rule 50 for the court having submitted it. In this case, right? We're not complaining under rule 50, right? We understand that we can't get judgment entered in our favor. But we are like the appealing party, one of the parties in Greenleaf V. Garlox, where the court said at 174 F third at 365, they said, given the state of record at the closing, the plaintiffs had every reason to believe that the jury, if it understood and rationally applied the jury instructions, would decide in their favor. The thing that we lose is the ability to have judgment entered in our favor. But there aren't cases out there that say, because they would be contrary to rice, the community health systems, that say you lose more than that. When you don't file your rule 50 motion, the thing you lose is the ability to have judgment entered in your favor. And consistent with rice, there's no other way to read it. That's our position on that. So you think the jury is going to rule for you, so you don't take it away from them, expecting them to rule in your favor, expecting an appellate review standard to be deferential to that jury finding. And not having done that, you're arguing that you don't lose your new trial right and hope to apply a different standard of review that more day, novo less deferential. So the question of a standard review, I think, is a very important one. And let me say a couple of things about that. First of all, the usual reason that there's great difference given on a rule 59 motion is because the trial court was there and gets to weigh the evidence and exercise discretion. If you take a close look at the decision here, there's no weighing of evidence. And the only exercise of discretion is to say, you didn't move under rule 50 and therefore I am denying your new trial motion. Now, that's a legal error. You can't say that consistently with Rice v Community Health Systems. And if you take a close look further in rise at page 287, Rice says that when the reason that the new trial was denied is legal error, as opposed to simply a difference in how you weigh the evidence, that the standard review is denovo in that situation. So we think we meet the standard under any situation because we think that judicial admission that was made here by Mr. Veren, we think the undisputed evidence about referral, all of those add up even under the highest standard under cases like, sorry, under cases like Bristol v Bethlehem, we meet that stand. I don't agree in reading this record that this uncontroverted evidence on this referral. I think it's a complex question, especially in view of the court's instructions to the jury. There was a lot of evidence that while prosperity was made known to the borrowers, they'd made their own decisions and did their own investigation and made decisions independent of that. And that could be construed by the jury, especially in light of the judge's instruction, as not being referred by the broker, but being there making their own decisions. And they'd looked several companies, they went to lending tree and they, and then the court described it and the whole thing was explained in the notion is the weather, they were a broker or a lender and they ended up deciding that prosperity, they selected prosperity as a lender on that competition. And so I think the jury instruction can be rational. You do have that statement made by Turnian, closing our commission and you rely on that heavily, but that doesn't make the jury verdict irrational. Let me say one thing about that in turn to the admission. So with respect to that point, the jury was instructed consistent with respa. The definition of referral is in the regulations, it's in section 12, section CFR 1024.14F1, more or less. And what it says is it has to be an affirmative influence. It doesn't say it has to be the only reason, it doesn't say it has to be the sole reason. And so the fact that other influences came to bear does not make it not a referral. But there were instructions, specific instructions given by the court on this. And I don't think you've objected any of the instructions, have you? No, we're not objecting the instructions, but consistent with those instructions. And if you take a look at the form of referral, which is in the Adeniment pages 12 to 13, that's a long and foster document prepared to comply with respa, which is itself the referral, which is itself the referral. And it's a long and foster document and there's no other way to read that, other than it is compliant with respa, it complies with section 20607C4, and it affects the referral all by itself. But let me turn to the question of attorney admission. Before you do that was the instruction given by the court consistent with the instruction you requested. On the definition of referral, I think we may have asked for a little more than that, but it was not terribly inconsistent. And we don't challenge that instruction today. With respect to the admission, you know, the admission is what it is where the statement was, there's no dispute that, and the one thing we agree with is that there was referral. That was an item for the jury to decide. And the statement was made at the end of all of the evidence. It was the first of three closing arguments by the defendant, none of whom, you know, signaled any- The lawyer may have made a misstatement, but he was teeing up another issue. He was basically saying, I'm not talking about this, I'm not talking about this. He's teeing it up. And in context, it's to say that when he makes that kind of comment to tee up another issue, is a judicial admission, which is going to deny the jury of its opportunity to find facts. That's a pretty dramatic thing. And nobody came to the court and said, ah, he confessed we want a judgment. And you didn't say that to the court at that point, did you? We did not move for judgment after the closing argument. That is true. But you're on a, what- It's now on a field to say that that judicial admission is binding, and you should get a new trial. You're on a- If you take a look at- Minding you should get a judgment. Well, you're on a- Under rice, we're entitled to a new trial. But if you look at the- At child and at hall- You missed my question, sorry. My question is, if you agree that you can't have a judgment, because you didn't have a rule 50 motion, but you can have a new trial. Yes, sir. The judicial admission is not a question of sufficiency of the evidence. Your argument on the judicial admission is basically that they've admit that issue away. Correct. You're entitled to a matter of law, which falls under the rule 50 parameter, and can't be raised again. Your Honor, I don't see- It's not an adventure, it matters that- That's a considerate. If it is, the jury didn't hear it. Your- Your Honor, I disagree with that, because if the jury's verdict is irrational, In light of the admissions at trial, including the attorney admissions, a new trial is a perfectly appropriate remedy, because it was against the evidence. It would accept there are a lot- There's other evidence going the other way, and there's instructions to go the other way. And it seems to me that all of that can be considered by the jury In making rendering it verdict. You either get a sufficient to the evidence argument Under your procedural structure, or you can argue- The most you can argue is that that's part of the evidence that's already heard. You can't argue that that judicial admission goes further and gives you a new trial. I- I don't agree with that, and I'm not aware of any authority that says, when there's an attorney admission or a judicial admission, that it limits you only to rule 50 relief. I'm not aware of any authority to that effect. Oh, I'm not suggesting you do, but I'm suggesting it has to be taken in that way, because it- Otherwise, the only thing you can legitimately argue is that the verdict was not supported by the evidence, and that this statement by the attorney is part of the evidence that the jury considers. And if you say it's part of the evidence, you then have to still take into account all the rest of it. I disagree with that for the reason that I've just stated. If I can spend just one moment talking about the evidentiary issue and the closing argument issues, not- not to argue so much that these are- although they would justify a new trial on that basis, but to point out that these help to explain why the jury reached the erasure of the criminal verdict that it did. The error here we think was plain because the trial court went back on its grant of the motions and limine because it permitted over the top closing argument. And if you look at this courts- Well, that closing argument thing is really, I think, a part for you to make when the examination during trial, you were pressing the witnesses about calling this a bamboozle that you were bamboozled, you were puzzled. So on cross-examination of that very witness, the cross-examination says, when you closed that loan, did you feel bamboozled? No. Did you feel it was all fair? Yes. Well, what prompted you to come to the conclusion of bamboozled? I got an attorney- a letter from an attorney. Did you solicit that letter? No. And it goes on and on and develops the fact that your firm solicited the client and pointed out that they were bamboozled. Now, when the lawyer gets a closing argument and says they really weren't effective, that's not open to talk. That's the evidence presented to the jury. I understand the court's position. And our position on that is simply that there's a dividing line, or there's supposed to be, between attacking the plaintiff's case, attacking the plaintiff's, and attacking the attorneys who brought them in and saying what was said in the closing argument here. But our point is simply this, if you look at that or the evidence about economic injury, that evidence had been ruled out flatly by the trial court. It was less. There's a door open. Which the trial court expressly ruled had not been opened. And so after conducting the 403 balancing before trial and finding in our favor, the trial court reversed itself without doing that 403 balancing, let that evidence in. Everyone knew that it was critical evidence. Everyone knew that it was flatly forbidden by multiple courts of appeal, ruling on the respostatute, and yet let it back in. And so when we look at this irrational verdict on referral, you have to try and ask relevant. Isn't that relevant? By the way, I see I'm over, but I'm asking you a question. Isn't that relevant to whether the borrowers were bamboozled or misled or deceived or whatever the words you used? It goes not to just their damage. It goes to their reaction to this loan, whether they were mistreated, whether there was misrepresentations, deception, and all of that, you tried to bring out. And it seems to me at that point when they come back and say, you know, we weren't really hurt, we were satisfied, we got the loan we paid for, the fees were fine. And then the correspondence with the attorneys comes out. I don't quite follow why it isn't relevant all of that. Your Honor, that is exactly the argument that the defendant's made to the trial court. And that is exactly the argument which he rejected, which he rejected. And if you look at the examination of the plaintiffs, for example, Mr. Albrose said, I feel I was cheated because no one told me that Wells Fargo was pulling all the strings here. And he later testified not in an economic or not in a monetary sense, but I feel that I was lied to. I was cheated for that reason. That was the evidence in front of the district court. It exercised its discretion, said the door wasn't opened, and yet it permitted that evidence to come in. And then it became the centerpiece of closing argument, and then you get the result that we got. When you come back, speak to the banks. Happy to do it, Dr. Hunter. Thank you. Mr. Jay. Thank you, Your Honor. I'm William Jay on behalf of all the defendants in this case. I'd like to begin with a point that Mr. Smith made about the price that they paid, that the plaintiffs played by not filing a rule 50 motion. It's more than just not being able to get a judgment in their favor. This court's decisions in Bristol steel and in nickels make clear that you pay steeper price than that by not filing a neutral motion. You don't get to substitute through the avenue of a rule 59 motion. The avenue for searching review of the submissions to the evidence that you would get under rule 50. You just don't get to do that. And if you look at the rice case that Mr. Smith cited, you know, I have a dozen times, you will see that rule 59 is not a free pass. It's not a way of bringing up errors that you've already forfeited. In fact, in the rice case itself, there was a jury instruction issue. The party had not objected to that jury instruction. They couldn't get a new trial on that jury instruction by raising this in a post-judgment rule 59 motion because that was forfeited. Here we have not just a forfeiture but a waiver. As the court's colloquial with Mr. Smith as brought out, the plan is proposed question three. They had ample opportunity to change question three and judge when I like to spell out a little bit more detail on the timing. Not only was there a charging conference, the court proposed the verdict form after much, much, but not all the evidence was in. The parties filed their proposed changes to that verdict form. They also objected to the, to various aspects of the jury instructions, but the plan is filed no objection to this. The final objections that the verdict form came in on the mornings of closing. After closing, that afternoon and again the next morning, we have more wrangling between the parties about changes that need to be made to the jury instructions in light of contensions that were made during the closing. There were two written filings. There was two colloquies before the district judge. The plan is never set a word about the need to take this from the jury. If they had wanted to, there are two aspects. If you look at joint appendix 1735 and 1739, two aspects of the plan is case where the judge instructed the jury. I've determined that these are uncontroverted or words to that effect. And so you need not look at that. So that's the, whether the mortgages in question are federally related and whether the affiliated business arrangement in question meets certain aspects of the federal definition. The judge says you don't need to consider that. Planets could have asked for that kind of instruction. They could have made any number of proposed changes to the interrogatory. They did nothing. They waited to see what the jury would do. I think it's a pretty strong statement you made on argument. So you said, I think the only thing I agree for sure is that long and foster did refer the name plaintiffs to prosperity. There's no dispute about that. That's pretty strong stuff. Well, Your Honor, there's no dispute about that. And the issue is getting ready to go to the jury. Your Honor, I think you need to look at the paragraph two paragraphs before the paragraph after as this court caution. I would like to look at the context, but I tell you what, even standing alone, I will you look at it. That's pretty strong stuff there. There's no dispute about that. That sort of added language there. I'm just saying it's pretty strong. And I do see, potentially I'm not understanding why there was no objection or you indicated no statement to have the court to go ahead and direct the verdict on that particular issue in light of that statement. Because it looks like you were primed to say I agree. It just didn't happen. So I don't, I mean, that's a pretty strong statement. Well, I'd like to address the statement, but let me pick up on your second point as well, which is that nothing was said. Nothing was said when, you know, after all, this is one group of defendants lawyer. Two other groups of defendants are going to stand up and close separately. Nothing was said at a time when those defendants could have said, wait a minute, we don't agree with that. You know, as the six circuits said in the Harrison case, it is important, you know, to pay attention to the not just the context, but the opportunity to explain and qualify. What did the, if you bring it up, if the other side brings it up and says this is a judicial admission, then the lawyers, and here the lawyers for the other parties would have an opportunity to explain and qualify, explain whether they agree with it, make any qualifications that are necessary. There was no statement. And so the district court applying its discretion reasonably concluded that it occurred to no one at the trial that this was a judicial admission. But let's talk about the state. That's not argued after this. They came back to, they bring this back up. And I mean, it's like to me, it was a nice thing to come back and say, well, that issue was off the table. Was that done? And there was a rebuttal closing. There was no mention made of statement. I don't, I don't believe so. So, but the statement itself, you have to assess it in context as this court said in the fraternal order of police case when reviewing judicial admissions. And the context sensitivity is exactly why it is as far as I can tell, I found no case. So the context is Mr. Varan is talking about to the jury about their need to use their own recollection of what the testimony had been. Not just to go on what Mr. Gordon in his opening closing for the plaintiffs had said, he said, it is your job to weigh what happened here. I have a lot of differences and differences of recollection, differences in what was said. He then makes the statement that we're talking about here. Now, Mr. Gordon had said in his opening at page 36, he had recollected back to the plaintiffs' testimony about their being referred. Now, the meaning of the word referred is a point that I want to come back to in a minute because as Judge Neem Reyers alluded to, there's a specialized meaning under respa. And there's the way that people talk in ordinary English. They're not the same, and this is very important for this point. But so, Mr. Varan is saying, okay, I, you know, I agree with that. There's no dispute about that. But a lot of the other things, then he begins talking about Mr. Fitzgibbon, who was the plaintiffs' expert. I don't quite recall Mr. Fitzgibbon's testimony coming off as Mr. Gordon described, and he's off onto Mr. Fitzgibbon. So, this is not a judicial admission. It occurred to no one at the trial that it was a judicial admission. It's not raised until 13 days later after the jury has come back with its verdict. We think that that's ample basis for the judge's decision not to treat this as a judicial admission. That's a discretionary judgment that the this court reviews, definitely under the myer case, there's no abusive discretion here. Let me pass for a second on to the economic injury point that Mr. Smith brought up toward the very end. The most important point I can make about the economic injury point is that there was a clear instruction to the jury that is almost verbatim the same as the plaintiffs proposed jury instruction that says you don't have to consider whether there was an overcharge or other economic injury to the plaintiffs. That appears at in the joint appendix at 1733. Mr. Smith reply brief doesn't address that instruction at all. Mr. Smith, I understand he didn't have a lot of time to address it this morning. He hasn't said why the jury should be presumed not to have followed that clear instruction. What in fact happened on economic injury? There is an expert that the defense had proposed, Dr. Corschein. The judge wouldn't let her testify. He stuck to that ruling throughout the trial. That testimony was the basis of the rule 403 discussion. That's clear if you look at the motion limited decision which is in the addendum to the plaintiffs' blue brief. That decision is what he says would be, has so little probative value would be outweighed by the danger of delay or confusing the jury or potentially other things. However, that doesn't mean that this point, that the four questions that were asked, one to Ms. Mintor, one to Mr. Albro, one to Joe Rogers, one to Randy Crout, doesn't mean that those four questions were out of bounds and certainly doesn't mean that the judge had ever said that they were so prejudicial that they violated rule 403. The judge himself explained this on the record at, believe page 1592, where he said that's not the same, sorry, 1590, where he says that's not the same thing as letting Dr. Corschein testify. That is the ruling that he stuck to when the defendant asked him to let her testify on the grounds of opening the door. He said no, they haven't opened the door to that and he wouldn't allow her to testify. He stuck to that ruling. It's a significant point that Mr. Albro testified not just that he felt taken and cheated. You come back to page 95 of the transcript of his testimony. The question is taken and cheated on the price. And he says yes. So it is that that opened that allowed this to come in. Only after it came in, only have this question about whether he got essentially whether he got a good deal. Only after that line of questioning did the colloquy that Mr. Smith alluded to come in. That had nothing, that didn't close the door. It didn't establish that he wasn't talking about economic injury. In fact, he had made this statement about taking and cheated on the price. Let me come back to the definition of referral under arrest. I think this is very important. Not just for the judicial admission argument, but the whole point about why this jury's verdict is entirely consistent with the evidence. It's entitled to the most differential review by this court. And it certainly passes the standard set out in Bristol steel. Is there any evidence to support the jury's verdict irrespective of its sufficiency? The respite definition is in the jury instructions at 1734 to 35 says that you got to show a referral. That's not just a recommendation. If I say to you, I recommend that you try this settlement service provider. It's not a referral. Two things have to happen. It has to have the effect of affirmatively influencing person's choice of a settlement service provider. And they've got to pay for the settlement service. So the plaintiffs have repeatedly asserted that I and Mr. Smith said it again this morning that the piece of paper, the affiliated business arrangement disclosure that that constitutes and memorializes the disclosure. That's not right. We can see that that's not right from the respite statute itself. The respite statute itself says that that disclosure has to come at or before the time of referral. That's in section 8c4 of respite. If it constitutes the referral, it could never come before the time of referral. The reason that we have this somewhat confusing situation is the use of the word referral in ordinary English. The kind of ordinary English that we use on a consumer disclosure. But the jury was told in connection with the question they were answering that referral meant to the respite referral, which had to have not only the effect that had to be paid for. And the evidence was that these persons went out and made their own decisions on it. And they were quite proud of that fact. That's absolutely right. So both all of the name planists shopped around. This is brought out extensively during their testimony that Mr. Albro in particular, at least 15, got information from at least 15 lenders through lending tree.com. He provided information to more than one of them. In fact, he'd gotten from his long and foster agent referrals not just to prosperity, but also to Bank of America. So there's ample evidence in the record to conclude that even one of the including that even one of the named planists was not referred would be enough because the interrogatory asks were the named planists plural referred by long and foster. And so the Albro is in addition, there's evidence in the record that they got a $5,000 credit against their closing costs and the amount of fees paid to prosperity $777. Jury could conclude that the credit is enough to establish they didn't pay for their settlement service. Now the disclosure form, it does say we are referring you, but this is the ordinary English versus rest English point that I've come back to. That we are referring you language prescribed by the government. It's what you have to qualify for a safe home. I'm just confusing the matter because you're using referring in the evidence and in the record and the documents, the issue before the court is whether the Jury verdict of referral was rational and the court in giving them that question explained the respite definition explicitly in the instruction. And said you must apply this definition. It doesn't so the jury is instructed and we presume they follow that instruction. They're constructed to look for those elements and deciding whether they were the referral. That's exactly right. I don't understand why you're going and talking about all these other English referrals. I simply want to respond to the idea that here's the Mr. Smith has said here's the document. Here's the document. This was the referral. It wasn't the referral. I'll move on from that. So the only other point that I want to make sure and talk about is the point about the closing. Judge Neemar, I think you brought out in the colloquy with Mr. Smith that the point that these plaintiffs were perfectly happy with their loans was until they got a letter from counsel. That was the subject of extensive testimony cross examination, both Ms. Minter and Mr. Alborough. Council is entitled to refer to that evidence. So at most all we're talking about is the phrase follow the money. Now if you look at the context of the closing arguments in this case, Mr. Gordon in his opening closing for the plaintiffs use that phrase nine times. Mr. Varan, next closing, six times, Mr. Permit, next closing, three times. So Mr. Bourgeois, the last person to stand up on the defense side to close, he uses that phrase. He's just tying into a phrase that's being used all morning or all day. But the point that he's making is one that's supported by the evidence. And I think that there's certainly no no effect on the question that the plaintiffs say they want a new trial on. They say they want a new trial only on question three referral. So in order to show prejudice from one of these evidentiary errors, trial errors, or other matters that are within the court's discretion, they've got to show not only that the court abuse its discretion, but that there was a prejudicial impact on the jury's answer to the question whether long and foster referred within the meeting of respite the plaintiffs to prosperity. I think if the last the court has further questions. What about speaking on that binks issue? Oh yeah, issue is to whether what properly dismissed those claims. You're on her. First point about Ms. Binks's claims she had two under section 8A section 8C4. If her claims are still live, then her 8C4 claim is live too. It's not been disposed of and this court doesn't have a pellet jurisdiction over the over the case. Now we don't think that's the case. We think that what happened was judge Nickerson said, okay, we've had a trial. What happens now? Tell me what happens now on the 8A claims, for example, and the plaintiffs and the defense submitted a joint letter but with different different positions about what should what should happen then? No mention of Ms. Binks. And then the plaintiffs proceed to file their neutral motion in which they acknowledge that the jury's verdict binds the names of the plaintiffs in their attempt to pursue their section 8A claim. What this judgment does because the judgment says name plain. I'm not sure the verdict does because she wasn't even in the courtroom. I mean it wasn't about her. She was not a member of the class that went to trial. There's no doubt about that. I know that in that instance but once the judge entered that that judgment and then if not on the folks in the courtroom would add this name plain. Well, you're not. But no one said anything. No, right. No one said anything you're on. As particularly when there was ample opportunity the judge has said what do I do now? What should happen now? I submit that if if because Ms. Binks does have an 8A claim, you know she I just like to keep talking about 8A and 8C and I don't read the statement. I'll kick that claim if you like your honor. 8C is nothing more than articulation of what 8A said. We can we entirely agree with that your honor. You know if that were before the court. Yes, but if she wanted me like it was basically abandoned myself. But the Binks claim her claims were beyond the statute of limitations and the only way she gets back in is if somebody initiates a hearing of some kind on told. Right. She right there's no dispute. I mean because she was the representative of the tolling class that she the only way that she could pursue these respical aims is if she gets the benefit of equitable tolling she didn't show the necessary diligence you know that and they didn't even pursue it after that. That's such a point of out from your question. The judge just entered a verdict. Nobody objected. I mean a judgment it closed out everything and if somebody said oh we still have this to do. It seems me they could have raised it. I think that's absolutely right. It's a little messy though isn't it? Well I think if the judge had done it summarily without giving everyone the opportunity to opine about what should happen next or perhaps if she were separately represented there were and her council her separate council had no opportunity to speak maybe that would be messier you know but here if if there were written opinion rejecting her claims and saying that they're untimely and he's granting judgment on that basis that certainly would be neither but I think that there's certainly no abusive discretion in closing out the case as Judge Nickerson did. And ultimately whether the standard here is invited error or plane error or just very heightened abuse of discretion review under Bristol steel the plaintiffs have a very high hill to climb we submit that they have not climbed it. Do we have to answer that bank's question? Do you have to answer the bank? Is that really before? I mean at this point she hasn't done anything until she does something to determine if she in fact is part of this other group? I think respectfully you know I would submit that that might be a question for Mr. Smith because while they've raised it on appeal and their blue brief we responded in our red brief there's not a word about it in their reply and I don't know I don't know whether they're still pressing it but we submit that if you do address it that the judge has discretion just to deem those claims both the 8a claim and the other claim abandoned and that's why we have a final judgment here thank you thank you Your Honour. Let me address a bank's first in response to your your question. The first is that the way the district court dealt with us was to tell the parties that her claim with others had been severed from the case and that's a joint appendix page 1269 it's administrative order number five in the case stating that those claims have been severed the second point is in terms of the statute of limitations that that's an interesting argument but it's one for the district court to make in the first instance and not for this court to in effect enter summary judgment or hear a summary judgment motion that hasn't been ventilated at all in the district court. Do we have to answer this question I mean until it comes up sounds like to me that's when you make your next move and then it'll come up and do that. I think it's I think it's important if the district court is going to get for you know the correct road map for a programmer you didn't say anything about it in the judgment just use this term I understand that but we took the appeal on that basis. Yes for an answer you might not well. No you're on I look whatever the district court does it does I mean we we took an appeal because her claim had been adjudicated in a way that was that didn't make any sense to us and and we appealed immediately upon the the entry of judgment on that on August 28th that that was the order position before us is that her claim has been adjudicated not that it's out there not tended to but it on its face it says it has been adjudicated because she she had an individual eight a claim that that's what that order says and so we can't unring that bell that's why we're if it's an eight eight claim and that was resolved the eight eight claims in that case the polling issue becomes move but they weren't she was not part of the timely class she was part of the polling class so she couldn't have had her claim adjudicated in the trial that took place last year okay with respect to the the question on rule 50 and what happens next I want to suggest let me just go back to that one second could could we can screw the severance for trial of just the polling issue and not the eight a issue as long as there's a clear instruction of the district court so so that no I'm talking about the record when the judge said we're not going to do banks now we're going to try that another time yes was the court referring to the whole case or was of course referring just to the polling evidence in other words she still had in common with everybody else eight eight yes she didn't have in common the tolling issue which would be move facts correct now if the eight a is resolved against everybody the court could well have thought that now I've resolved everybody the tolling class is no longer it's moved the tolling class was not part of the adjudication in the trial held last year it was only about the timely class so it couldn't have bound her it depends on what the scope of that severance was if it was just on the tolling issue if I were the district judge I would say we're going to try all eight a claims and then I'm to say with respect to banks and the people in her class yes if you win on the eight a we're going to have a separate hearing on tolling just find out whether they can get the benefit of the eight a ruling but since the eight a ruling was lost it becomes moved the doesn't matter with the only reason that eight a was lost was because of the effect of question number three on the the timely class I understand I'm just saying right now we have a judgment which purports to adjudicate her claim we don't think that that's proper for the reasons that I've stated but let me say just a couple of things about rule 50 the first point is I think you have to come back to rice because rice says very clearly that what the price you pay is and the price you pay is that you can't get judgment entered in your favor the standard of review can be higher if you look at cases like Bristol but in cases like Bristol there was a wing of the evidence there was an exercise of discretion and there was a need for a new trial altogether in this case there's all you have to do is go on to the second case the kickback case that everybody intended to be tried separately and that's why the the analysis under rule 59 we believe should be different here with respect to the question about whether this attorney admission comes in I hear Mr. Jay say that there has to be an objection why shouldn't why shouldn't why didn't we raise the issue but if you look at this court's decision in my RV Berkshire you don't have to raise it itself executing unless it's ambiguous unless it's ambiguous and that's a case like Harrison where it happened at the beginning of the trial and it wasn't clear here it happens at the end of the trial and we submit that it's very clear what was intended which was to admit the obvious in front of the jury in order to move on to other issues was it was the mission by one lawyer buying all the rest of them well first of all only long and foster could have affected a referral so when Mr. Varan admitted it he's the only person who had skin in that game the second thing is he's the first of the three defendants who closed there wasn't a peep out of the other two and the reason is that just as he appeared here for all of the defendants they divided up the closing the each addressed different issues they each had different things to say his job was to talk about respite he spoke to that issue then there is a question but then the next one talked about prosperity and then the last one talked about the plaintiffs and made the attack on plaintiffs council which we've discussed before so in that sense it plainly binds all three of them on the question of referral and I see my time is up if I can have 10 seconds to address that you've got it okay the form that is at pages 12 to 13 of the addendum is a form that is required by respite as Mr. J said and it's required by respite because they have to document when the referral happens this is a long and foster form long and foster handed it out to everybody who came through their doors that was the testimony of trial and it doesn't matter who handed out whether it is an employee or an independent contractor if you left them in a bin at the door it's something that respite requires to document the fact that a referral has occurred and even though you might have shopped around and even though you might have compared prices the burden under respite is simply to show that there was an oral or a written act which had the effect of affirmatively influencing the choice that's the definition of referral that's in the regulations at 12 CFR 1240 consistent with that definition and consistent with the respite instruction the jury was given on referral we submit that a rational jury could not have found otherwise because you have something that is intended to define exactly what the jury is deciding whether there is a referral under respite thank you very much we'll thank you for your in court for the day tomorrow morning and then come down in a press conferenc