Legal Case Summary

All in everyone. It's a matter of, uh, somebody Williams versus BASF at all. And I think you got noticed that we did expand the time rather. This case has so many, uh, facets and nuances to it. I don't usually ride the clock anyhow. This is certainly not a case to be jumping on. Warriors want to put like him on, uh, because there's so much money to explore here. But, uh, just for general guidance, you can use 18 nets. It's not how you're pushing your time. But, you know, don't be surprised if the red light goes on and no one asks you to sit down on both sides. Made it proceed. I doesn't mean you should be really long windy. I just thought when I just said you're a group of lawyers, my god. You can show me the hook any time you want, Jeff. May I please the court? My name is Jeff Pollock with Fox Roth's child. I hear a few here today with my co-counsel, Cohen Placitalan Roth on behalf of the palates. Your honor is correct. We have at least three or four weighty issues here. One is the Anti-Enjunction Act. Can I just start? Well, first of all, I guess, basics. So I'm sort of new to this. I just came in on it. Yes, Your Honor. Why did you file a new jersey rather than you get five plaintiffs from Ohio, one from New York? What's the reason for filing this particular action in New Jersey? Because the ASF's headquarters in New Jersey. That's the only thing I could think of. Yes, Your Honor. But then you run into the choice of law issue with regard to litigation privilege, at least those to the common law claims. And I guess the only common law claims that remain or what fraud and fraudulent concealment? Fraud and fraudulent concealment fraud upon the court. I thought fraud upon the court you didn't. You still find what we can do with that one. Okay, so fraud and fraudulent concealment. And you've got what appears to be something fairly tough in New Jersey. Maybe Ohio is differently, the Northern District of Ohio says it might be some Ohio lower court cases, state cases, say that perhaps you do have a litigation privilege. I don't know what New York law is, but what the choice of law thing only you didn't bring up in the district court. The choice of law thing was not broke in the district court. The judge, the opinion below did raise it in a footnote and said, hey, if this thing goes back down or has to continue, the opinion breathing on it, but it did not decide the issue. Did that mean I spoke, if there is a waiver, that mean that footnote. Yeah, the district court dealing with it doesn't, doesn't mean that you dealt with it. They correct. If, and then the question is, can you waive choice of law? And Lord knows we're all over the ballpark in our circuit. You've got a 44 case that says you can't, that was by the judge maris was on the panel, that's where in this courtroom. You got a 58 case, parkway baking that says you can't. Then you got a 95 case and bank in nearly which makes a statement that you can, although I don't think it's a holding. So, but the, I guess maybe my first question to you is, why can't you waive a choice of law analysis? You're on our afternoon, and I, I ready for the other four on the choice of law issue. I had not really thought that through. I recognized the court at this point and not ruled upon it. And so, if you're asking me the question, and I just want to understand the court's question, is the question under the New Jersey litigation privilege, does that bind all parties? Is that one when I asked, because the trace of law question may go to whether or not it's the New Jersey litigation privilege is the privilege of the reason that controls. Where is not in the Jersey law that controls? Well, certainly as to BASF, I would argue that the New Jersey litigate New Jersey law would govern because there are BASF. But the judicial proceedings are talking about where in Ohio and New York? There were, but they have independent tort claims under spoliation, which were never litigated before. And those claims, there's no reason they couldn't bring them now in New Jersey. That's part of our class action. They were unaware of this before. There's no reason they cannot now bring this claim here in New Jersey. So why would that not be properly subject to New Jersey law in New Jersey law? Well, why would it? In fact, the claim was brought to New Jersey. You look to then New Jersey trace of law rules. And I don't know that New Jersey trace of law rules would require New Jersey law to be applied to that. Maybe Ohio law may be, maybe Ohio and New York, depending on the plaintiff. Well, New Jersey's government, New Jersey is, you know, under, I have to admit, I didn't prepare that part of the argument. I don't know if I know the area pretty well because I do a lot of insurance litigation. New Jersey looks to the governmental interest test. No longer looks to elects those. I don't like to die any of the, so the, and in this case, I believe what they would say is where did the actions that New Jersey law now? Yes, sir

. Doesn't that release substantial related, or does that the same thing? I thought New Jersey followed the restatement 148 and section six, which is the substantial relationship test. I can't be the same thing in this case. My recollection from the insurance case, whose name I'm not, again, I was prepared on this one. The insurance case rises out of Trent, New Jersey, where the car accident occurs in New York. They looked at the governmental interest test of which case had the most substantial relationship. You're correct, but they also were using the governmental interest analysis. Does the New Jersey forum have a significant interest? Did the Judge Chessler address the choice of law issue? I thought he had said something in his opinion. He did. He said, he said, I've not decided yet. It hasn't been brought to me yet. And that the issue could be a briefing frenzy, I think he uses a different word, but it would be a briefing battle between what would be the choice of law. So that issue, he does identify the, and there might have to be some discovery. Correct. Do you know if there is a, you haven't, you say you haven't really worked on this issue, but you, you know, if there's a conflict in laws, I mean on these other. I honestly don't, Judge, one case that's a good question. It is one of the first questions the courts in New Jersey asked. I don't know the answer, because I don't know on this issue with regard to litigation privilege, whether there is a distinction between the two. And I think that frankly, even if we take the New Jersey litigation privilege at this broadest, I think the answer is that I would be shocked and surprised if the actions that are identified, which is identified squarely in put note eight of our moving brief, and identified in our pleadings would fall within litigation privilege in any jurisdiction. So I haven't looked at Ohio law on this issue, but I doubt that Ohio is going to say it's okay to take evidence, destroy it and the lie about it in a conspiracy. That's separate than actually representing it to the court. So to me, I don't know, Judge Ambro, whether there is a conflict to respond to Judge Wench's question, but my guess is. Maybe it's an issue that we asked for supplemental briefing, because I think you only dealt with it on pages 22 and 23 of your brief in note seven. And BASF had a long foot note on page 40. I think it's note six. Yes, sir. And then the K. Hill Gordon brief was a sentence or two on toward the end of page 53 on note 12. And yet to me, it's a fairly significant issue. It could be possibly could be. Judge, you might have I drilled down on this for a second. Sure. On the on the just so we're on our and this help all counsel. If you want supplemental briefing, the issue that you're concerned about with regard to the choice of law is whether the litigation privilege is different in Ohio than it is in the Jersey fair enough understood. No court has held that statements that are considered fraudulent statements are would be entitled to the litigation privilege. Is that accurate? No court to your knowledge and no state court in the country has ever held that a fraudulent statement would be entitled to the litigation. If you know that a fraudulent statement is covered now have the courts, including a law. For example, in New Jersey said that a potentially bad apple a false pleading and they talks about defamation. That's a little. It does and actually I would even give the devil it's due and say, Logan goes a little bit farther because if you take and we're jumping out of term about if you don't mind, Judge, when I just jump in right at this point. In the way, what happened was and that's the most recent work in the Jersey Supreme Court. So that's obviously where I focus, Judge, when is is what a local gadfly is a political political guy. He wants to follow and the local town council, Mr. Savid, who has since passed away files and arguably false pleading. The court doesn't really get into it, but let's assume it was a false pleading that the guy wasn't really a witness, Mr. Lloydman, and that the basis for him being kicked out, which is because he was annoying, which I think is what the case was. The court uses in that case it it couples it with Hartman, which is the earlier decision by the Supreme Court. And as Judge Alvin points out in Lloydman, it says directly as you pointed out Judge Fountaise that the question in the litigation privilege, which in Judge Alvin goes back to the 1500s, it arises out of speech. It arises and New Jersey, and I'll give the devil, it's due, has even gone farther and says it works in arbitration. It works in pretrial filings. It works in pleading's potentially even. It really announced it seemed to me a very, very broad principle when that court says I'm just going to look at the statement from the court. The litigation privilege generally protects an attorney from civil liability arising from words he has uttered in the course of tradition. Absolutely, words he has uttered. Even if they're threats and rubers, that's right. So I think we're faced with a spectrum here, and the spectrum here is as follows. You've got a misrepresentation. I miss represents them to you. In fact, there is some judge that says that fraud is acceptable, and I just don't know about it. So that's I'm not saying you can sanction me, you can discipline me, but you can't sue me. You've got Lloydman, where the guy actually makes a false pleading potentially to keep somebody, it savage keeps him out. The question is, is there a line? And I think the answer is there is

. The line would be, is it okay to take evidence and destroy it? To talk about it. It's different. We're talking about fraud, and you're talking about spholiation. Well, the question here was fraud upon the was the litigation privilege. How broad is the litigation privilege? The litigation privilege may it may address the individual representation by an individual, but it just really goes so far as to say if I collect evidence, as part of a plan, a conspiracy, because now you've got New Jersey Rico triggered. Let's assume for the sake of argument it is that it is inappropriate for a lawyer and a company to conspire to collect evidence, destroy it, and deceive the court. You've got Rico, which is a remedial statute, incredibly broad, and you've got litigation privilege saying an individual or presentation, even if it's potentially wrong or false, a few bad apples that judge Alpen in essence says, gets away. Those two issues are in conflict. There has got to be a line where the conduct, for example, of collecting that evidence and conspiring about it, because otherwise it will be open season on the courts. What people would say, and Atlas clearly points out, there is some point where the equitable power of this court to stop fraud does step in. To me, the question that's right here is that individual statement, perhaps. To use our example, let's assume BASF. Why can't the lawyers say there is no asbestos in our town product in the course of litigation? Why can't he say that? If he says it, why isn't he entitled to the litigation privilege because their words are dirty in the course of litigation? To put a fine point on it. This is separate from this pollination issue that you were discussing. I think they're intertwined, and here's how I think they're intertwined. If BASF and K-Hill Gordon have a case in which it's Haw Kansas, and they have a guy, they hire local counsel, and they say, John, there's no asbestos in our town. File a motion to dismiss. John walks in, files a motion to dismiss. I agree with you. He is absolutely immune under the litigation privilege. Whether that statement is false or not, he is protected because he believes it to be true, etc. That's the key. When you're putting a rabbit in the hat with this hypothetical, the issue here is because that's not even far because there's no see-in. Exactly. Right. Now, Chief Fafnick, what I was going to do is then take the next step. Is it a difference that makes a difference if K-Hill Gordon walks in knowing that it was false? Because now you've got the action of conspiracy, and you've got the statement. Is that a difference that makes a difference? The litigation privilege under Lloydman says, hey, as to that individual representation, maybe it's not a problem. I can go ahead and lie to the court. You can disbar me, you can sanction me, but you can't stoop me. But is it a difference that makes a difference that it's now part and parcel of an action that it is a discussion they had with K-Hill Gordon with BASF to collect evidence, destroy it. Lie about its existence, file false pleadings. Now, in the other context, filing a false pleadings, making a false statement, I'll agree with you Judge Fuentes. Those individual statements are okay, but there is no indication that the New Jersey Supreme Court went that far as to protect actions. And every other case in New Jersey, including Lloydman, goes back and traces the history to the 1500s where they're talking about speech, representations. Can I get your point? Maybe I missed something. So you say the making of the statement is okay on the Lloydman, but the destruction of evidence, the physical destruction of evidence is not. Is it, was that your statement? I think that the respectfully, I think we're talking past each other and perhaps I'm just being dense. Yes. Your question tries to put me into a box and say there's either statements or there's actions. And my answer is there's, they are your causes of action. They are, but the question is it's voliation of cause of action? It is your honor. It's an independent toward, but I was addressing a separate question, which is the litigation privilege. How, because that's where we started off with, how broad is the litigation privilege? And my point simply is that there is no evidence that the New Jersey Supreme Court in Lloydman accepted the proposition that actions such as those taken in conjunction with words are okay. For example, make it simple. I shoot a adverse witness. Clearly, I'm going to be liable for that. Even though I'm doing it in the name of a name of my client, I've got to be liable for it. So there are limits to what I can do. In this case, the question, of course, is, did the New Jersey Supreme Court really mean to say it's okay to have a conspiracy, to have this whole big principle of a remedial statute, Rico, we're going to have a whole industry now of lawyers and companies conspiring to destroy the court system. Do you think that there are policy implications in this issue that is that lawyers can make fraudulent statements in the court's suffocation? Do you think it's okay to do it? Or do you think that there are policy implications against it? I mean, does that aid litigation? Does it deter bringing cases to a final, just and fair result? It'd be quite honest with you, Judge, I see both sides of the coin because the purpose behind the breath in Judge Alpons' decision is that we do not want witnesses to be chilled when they walk up to the stand to give their truth. We do not want lawyers to be worried about giving their truth. I get it. And therefore, if someone overstates hyperbole, even misrepresents, the court says we don't want that chilled in the name of legitimate advocacy. I completely accept that proposition. And the court then goes on and says, and the section you just cited to me, that there may be some people who overstep, who actually misrepresent, and perhaps they get away with it. Doesn't mean we can't do something to them, but we can't sue them. This is different because here is the action conjoined with the actual words that they didn't just independently walk in and make a statement. It wasn't like Mr. Savage walking and making a fine saying, get this jerk out of here. This is a plot ahead of time to collect evidence, destroy it, benefit from it

. And that is a conspiracy. That is New Jersey Rico. That's our pleading. And now we get to the question of, is that statement what was intended to be covered with the litigation privilege? And I respectfully submit that is in no way what the New Jersey Supreme Court contemplated. The individual statements find and that's why I drew Chief Judge McKee the difference between the individual guy John in which it took Kansas and BASF, Kay Hill, Gordon, conspiring. I think that's a difference that makes a difference. It's a difference that makes a difference should make a difference to this court because otherwise it could be open season on this court as well. So the two claims that remain, if what is the fraud claim and how is it different from the fraudulent concealment claim? The fraud claim is that they deceived plaintiffs by virtue of like Williams for example, by destroying evidence hiding the existence of that evidence and forcing those people to litigate cases. And the same thing with the witness, the client in New York that they filed a false and misleading claimant by fraud, intentional knowing Mr. Representation with the intent for the other to rely upon it. That claim is in essence their fraud claim. And then the fraud, I'm sorry, and I'm just clarifying. I meant of the common law claims that remain. It's fraud and fraudulent concealment. The fraudulent concealment is what the action of the port of action of Mr. Hempstock after the West Fall settlement to take everything put together and ostensibly to destroy it. That's right. To deep 60 evidence put in the warehouse and not tell us about it. The district court said in connection with that. I'm not mistaken that you didn't show if you had that evidence that you would have a better career. And respectfully on that, I, this is where I think this is where Dick Boll and Twombly kicks in because as I see it, the fact same thing with the case in New York, though they pled that we have a certain, and the record, which I think the court, the opinion below failed to consider. We have proof in our appendix that goes through and says we BASF, Kay Hill Gordon are representing to you. There's no asbestos in the town rely upon this. That's part of the proofs. The other sort of the proofs are people actually saying we are dismissing based upon that representation. And so the, to me, what the court asked me here to do and its opinion is to say, prove that it would have made a difference. Well, the problem is I can't, it's kind of a cash 22. I don't have what I know is we lost. We dismissed the case on those, on those, and those two matters on the basis that are the representation. There was no asbestos in the town. Well, the, what it have made a difference if there is a, that's just a, the, to me, how the court's creating it, we've pled that it made a difference. So on the well pleated complaint rule, we have pled a proper cause of action. The causation seems almost endemic in, in the pleadings. If you lay out ABC and D, if the formula is ABC, if you have A and B and C, those will have D. If that's taken as the premise and you plead you have A and B and you see the fact that you're not may not lay out and therefore I have D, just seems, I don't know what other inference could be drawn from the allegations that you do plead other than the causation element and the court said was lacking. But isn't the simplest analysis of this we had to prove there was asbestos in their talc. We've somebody's dying a mess of the Ileoma. They, they've worked at a place where asbestos is present. And now the question is can we prove it's your asbestos and there was present, bestest present in your product. And we're missing that one. Six suits actually related to the Johnson Vermont mine. Do you know? I believe all of them. All of them. Okay. So, but, but to me it's one of the fundamental pieces building blocks we had to prove the reason we clearly have somebody's dying because they died. We have someone who's got a mess of the Ileoma that was pretty easy to prove the part we couldn't prove because we had we think about it from this perspective. The mine is flooded. So we cannot go back. We can't go on a way back machine. We can't go get the asbestos proofs that were there in 1958, 59, 60, 61. They don't exist anymore. So we can't go back and sample the air. We do have someone who was an admission against interest them because they had rain royal insurance company and others who were monitoring the mine, who were monitoring the facility. And they have proof that there is and they actually had proof themselves, which would have been palpable proof. There was asbestos in their talc and we could have then said to the jury, hey, there was asbestos in their talc and that is what caused this problem. The building block that we were missing was the asbestos in the talc part because they had collected it and destroyed it. And that to me is a I thought a very good proof of 2009 deposition of Mr. Potty, Patawano. Yes, Your Honor. Should I move on to New Jersey Rico Judd? What about the Anti-Injunction Act? Can we deal with that? Yeah, it seems like the first thing that you're only the relief you request there really applies only to BASF, not to K. Hill Gordon on the Anti-Injunction Act

. I disagree, Your Honor, respectfully. If you reopen the asbestos lawsuits, I'm just saying practically, K. Hill Gordon wouldn't be a defendant. Well, I think that's probably a good place to start. We, in the opinion, the court states that we sought to refile complaints. We sought to invalidate state court proceedings. We sought to alter stay or intervene, state court. We never sought any such relief. That's the 396 and 397 of the record. What you're asking for is if you were to go back to Ohio in New York and seek to reopen, they can't bring up ratio to Cod or any type of reclusion doctrine. And on that one, Your Honor, we are torn because it's possible that that would violate the Anti-Injunction Act under Atlantic Coast. But if you don't mind for a moment, Judge Ambroke, and I approach you from a different angle, the simplest form of relief would be if a class is certified, a people, a class of those people who had his bestest claims against BASF, where those claims were litigated without knowledge of the fraud. All right, so let's assume that's the class. You can define it more classily, but let's assume that's the class. Isn't the simplest form of relief that is unquestionable and does not violate Atlantic Coast simply to give them notice that a class has been certified? I am misunderstanding. What is it that you are seeking to enjoy? What did you ask the district court to enjoy? We didn't ask the district court to enjoy anything. We at we, let me just restate that. We did ask the court a number of different things in these, we asked them to enjoy BASF from making false pleadings. We asked them to enjoy BASF from making false statements, misrepresentations. Judge 20s of the, we will raise your recarta. You are enjoying them for asking to enjoy the defensive ways to recarta being inserted. We did, and to me, if I, the question before this court, I believe, is there no reasonable possibility, no reasonable plausibility of a amended complaint, that would pass muster, and my answer is there is, because if I ask, yes, under the anti-junction act, yes, your honor. And the simplest one is notice. Notice cannot conceivably violate any state court ruling. Non-spoliation can't conceivably violate any state court action, because all I am doing is saying preserve the records, but certainly notice alone is a substantive and procedural right. There is no reason that if we ask for notice alone, and all I have to do is prove one in order to be at that. What do you mean by notice? That notice, one of the things we would ask is that if the class is in fact certified, that notice be sent at defend its expense, which the Supreme Court has said is okay, after the class is certified, that a class has been certified. And this class is those people who had a claim against BASF and relied upon, or relied upon the representation, there was no asbestos in the town. How do you need, I don't know how that would help you, because then you're still stuck with these judgments, unless you can do something to get these judgments out of the way, there's the defensive race to the Colorado, and since we've got to ask for that defense to be enjoined from being raised, and that brings you right under the anti-junction act. Because we're not telling any state court what to do, and there are some states, I believe Oklahoma is one if I have it right, where in fact if I get a corrupt judgment, I lie and I cheat and I get my judgment, I can't reopen it no matter what. I get it, there's some places where there's nothing I can do, but there are other jurisdictions, such as New Jersey, for example, where if I obtain a judgment by fraud, I can make an application. I am not telling any lawyer what to do, I am not telling any judge what to do, I'm not violating Atlantic Coast because I'm not telling anybody what to do, but I can certainly they have a substantive right to know you of a spoliation claim. How are you not telling them what to do, asking a court to preclude them from doing something when you get an order saying to them you cannot raise raise to a Cata in a defense. Right, and so to me if that one oversteps your honor, then we'll strike it, but I'm focusing respectfully on those that I absolutely can ask for. So let's just, you no longer want to preclude any of the defenses that seem that you were seeking to preclude before. We were seeking that relief, but right now, I guess, and I apologize if I'm not addressing the court's question, one, I'm focusing on those that we should be able to ask for. What you want to do is give notice to notice, get an order of non spoliation, we want. Why would it order of non spoliation? One of the allegations here is that they've had evidence had a history of destroying it. There is no interference with the state court action. If we asked that they collect the evidence and maintain it, this court routinely requires that in every super fun case I've ever been in, you've got to keep that evidence and maintain it for a long time in the court. I don't know if they have to do that in your case, don't they? I'm sorry. They have that obligation anyway in regards to the court. But to me, since for some of these plaintiffs, and I recognize there are some outlier courts where fraudulent judgments apparently are legitimately obtained once after some period of time, there are others where those court having spoliation, there would be a substantive right to actually get notice. I'm not telling the state court to reopen the action. I'm not telling the state court that to consider, don't consider affirmative pleadings. All I want to do right now is say get notice and have a simple order that says, do not destroy evidence and keep and maintain it. I thought somebody gone. Isn't the evidence already destroyed? No. And I don't know any of your allegations? There is some evidence that's destroyed. There's evidence that's not. Some of it, for example, in Padawano popped up to the last minute. We've been advised that there's a warehouse of stuff. So whatever that stuff is. The injunction that you are now seeking is to enjoin the parties from destroying any evidence currently in their possession. Yes, Your Honor. What I haven't made that application to the district court yet. We did. We asked for a trust. We called it. It's a record repository. We did ask for that

. It's in our prayer for relief. We also asked for notice. Is your appeal from a denial of that order? There is. This is the appeal because the entire matter. What? Well, there was one decision. No matter what dismissed on the. On pleading stage. So there was no independent appeal. I have a front taste. This question is a good one because if what you're asking for now. And not something the district court had an opportunity to evaluate and consider. And it's not included in the scope of the district court's judgment. That unless we can get to that. Well, the. You're a thing for one second in our demand for relief. You're with me here. We asked for a notice program. That's it. 1934 paragraph D. Where was I? You. I'm looking at record 1934. Page 1934 paragraph D. Demand for relief is page 169. And we actually asked for a maintenance of a professional trust or locate. This is paragraph E. An injunction requiring VASF and K. Hilt to jointly and severally fund the maintenance of an independent trust. We called it. It's a record repository for locating, collecting, housing, archiving, make available VASFs as best as materials. So we did ask specifically for that relief. There's nothing that violates any state court right in that regard. So we don't violate the land of coast. If those two forms of relief and they may be improperly worded, and I will concede that there's other parts of the complaint that are really broad and that arguably intrude upon a state court right. But I think the question before this court is, is there no plausible cause of action that we have stated that upon remand on the third of many complaint, we couldn't get it right. And the answer is yes, because clearly noticed is not violet land of coast, keeping, requiring them to keep and maintain records does not violet land of coast. It doesn't tell a single state court what to do. And we do have an independent state cause of action, spoliation, which I recognize in the choice of law question and judge Ambro raises. There's no reason that matter. It couldn't be, it is not right and right alive today. What about the reclamation for fraud? That, that, that, that, I thought you're basically having a two-breel approach. Which, Quirter was the deployment to a judgment that they couldn't certain, certain defenses and that, seemed for a problematic and I'm not trying to bark in anything, but I get from what you're saying that you can see there is some problems there. But whether or not those problems are so weightiest, the questions lose or not suggest them one way or another. But there's some problems there that may not be there. If you look at it in terms of a declaration of that fraud was a, the, the fraud was involved. The, not, you're not pushing that one. Our theory on fraud, Your Honor, was that these people could not maintain that cause of action, because they didn't realize the fraud had existed. Therefore, they were, the action, cause of action was not litigated before. Well, that, that's true. But you've got judgments. We do. And I don't know how that is not, you're trying to box it into the re-litigation exception. I'm not sure that that, Ron Pagfits into that one. And I agree with you, Your Honor, because under Chick-Cham chew, I've got a problem on the re-litigation exception, because it was not a matter of adjudicated. I recognize that. So perhaps we cannot plead around that one. But to me, the, the question again is, the court here dismissed at the pleading stage saying there is no conceivable cause of action for an outrageous, regist course of conduct that we can take here. And I think the answer is no. There is substance every leads that can be granted. What exactly that relief is, frankly, I would like to have, once, obviously, if we get past the other hurdles we have today, I'd like to have the opportunity to re-plit into third amended complaint. But I think clearly I've demonstrated there's two causes of action that we could see that are substantive rights, notice to the parties, and also the formation of a record repository. If those reliefs alone were granted, that would significantly advance the cause that plaintes want to seek

. What is the notice that you want the parties to have? I want parties to have notice that there was a class action certified, and that the class is that I may frame it differently later on, but this would be the idea. Of those people who had claims against BASF, who relied, or who were told by BASF, that there was no asbestos in the town, and relied to their detriment upon that statement. Why shouldn't those people be notified? Chief Judge McKee is right. There are some places where the court may say, tough luck. It's too bad, so sad. You can't do anything about it now. There are other great places where it may not. But certainly, it is a substantive and procedural right for them to get notice that this have been occurred because it's something they were not aware of. And second of all, for those people who want to pursue, who have ongoing claims, and there are several, including a number in New Jersey, having the formation and preservation of the records that BASF and Kale Gordon have a history of destroying those records, that is a substantive right too. Maybe in your time, yes. Can we want to introduce your Rico briefly? Under Jersey Rico, the trial court found that under C-Tool versus... We know what they found. How is it wrong? How is this the court wrong? Because the answer is C-Tool versus C-Q-1 and BALL only stands for a limited proposition that for the purposes of statute limitations alone, that's the only one, that the statute that the New Jersey Rico and Federal Rico are coterminous. When we look at BALL itself, for example, the section that the court didn't cite is the very section that points out that New Jersey is broader. New Jersey, for example, has gone through and said that it uses the word incidents not acts. It uses the... specifically, and this is at 141-NJ-166, it specifically goes on and says that the legislature in New Jersey sat down and discussed what's an enterprise, and they rejected expressly the narrow limitation that the Federal law puts in, that we only want to have the mafia and mafia-like groups. They want to have broader things, so they defined enterprise differently, 141-NJ-161. They also specifically went on and said, and we want to make sure that other people are included, and therefore, New Jersey Rico, unlike Federal Rico, does not require the participants have operation or management responsibilities, 141-175. The second big question... Is there any case that you can give us that extends New Jersey Rico to this type of claim? No, there's also, especially your honor, no case that does not. And so the answer is, New Jersey Supreme Court has yet to adjudicate this precise issue. The second big question here... You have brief sites to New Jersey Statues. It does. New Jersey Statues, one calling one-dash-to, defines property. Is that the second you're citing to touch? Right. The question is whether your case falls within... Where do you go? Tows of action. Tows of action? Right. But the answer goes deeper than that. If you look at the chronology of cases... And I think this chronology is important because it's going to be, I think, a focal point of the discussion that you're here shortly. I think it's important to look at these in context. A number of them arrive in a matrimonial area, and therefore, the rules are slightly different, and I'll tell you why. Detalbo is the first one in 1974, and that one says personal injury actions are a chosen action. And the second one is Kruger, where the New Jersey Supreme Court, they accept the Talbo. The third one is Harmon, which accepts both of those, the Pelotivision again. Then we get to Amorado. And Amorado is a case that says... And what's interesting about the Amorado decision is it says two things, because the court has its... The hedge is its bets. The court says at 180 NJ Super 210 that personal injury actions are not a chosen action. But then the next paragraph it says, even if they are. Okay, so the court goes on

. It goes through, so it's hedging its bets in that decision. But let's take it as its worst, and say that Amorado says personal injury actions are not. Now you have two appellate division cases conflicting. What's going on in these cases? What's going on in these two cases is an Amorado, I believe, she lost her arm. And obviously that was embarrassment. Her arm is missing. The question the court is struggling with in the Talbo and Amorado is the loss of income from being able to un... Unable to perform a job versus the emotional distress of being embarrassed, because I can't wear a sundress, because I lost my arm. Those two questions, the court is saying one is personal, one is not. How do we know that? We look at land work. Land work is the fourth case in a row, 1998. It specifically rejects Amorado's ruling in the very first paragraph, because Amorado remember, under their reading, the ASS reading says, you cannot, it's simply these other cases are ridiculous. No, what the New Jersey Supreme Court said is under the Equival Distribution Statute for Matrimonial Law, if it is an a personal injury, I can't wear my sundress, I've lost my arm. That is personal to the individual, non-transferable. And by the way, in Amorado, the court looks at one key concept, which the court is well familiar, how do you define property? Is it transferable? Is it right? You can share. And so he says, well, that's a personal injury, it's not really transferable. But the Amorado court, remember, hedges its bets. If it is property, then we've got to look at it differently. Land work says two things, which are critical. It then says, and if in fact it's loss of income, it is distributable. And it says it in the very first paragraph. And the court then, at the very end, what's odd here is they cite the same section I do. At the very odd, at the end, it says, and it doesn't matter to us the fact that the actions in co-ate, I, the litigation itself. It seems to me, and there's another case that the test of this, if we look at what the action itself, but the nature of the injury, the arise to the action. Yes. Why is it in your case more like a personal injury case? Because the underlying thing here is the personal injury that purportedly arose from exposure to, especially, it's not like a breach of contract claim, or that kind of a business or property chose an action. It's much more like a malpractice claim insofar as it results in a personal injury. Well, I think that when you look at who's filing the cause of action, typically it's the seasons of state being prosecuted on behalf of, and that's where we get to Mattel Barros, which is the last case I was going to go to. But I think that when you look at these causes of action, one, they arise in the matrimonial context. And so the court is grappling with how do we split a limited asset? When you get to your question, Judge, the court is splitting the action and saying, if it's a personal pain and suffering, perhaps that is unique to the individual. But what the Supreme Court has done in every one of these cases is also said, the married couple are a unit. And to the extent that they have loss of income, that they have expenses, that they have all these other things, and especially where you have a land in Barros, which is the last of the case, unpublished decision, but it is a chance redevision decision. But the court here doesn't cite to these earlier cases, it's a trust in the states matter, which is a lot like all the cases we're going to have here, because the guy, the person's died of his best of exposure. I thought that in that matrimonial case, I may have misunderstood it, but a personal injury action is an award in a personal injury action is designed to make a person whole, one person whole. So you can't divide such an award. Your Honor, I think that's wrong. I think under the land where with the court says, I mean, I don't have to say it. I think in the land where the problem is the court disagrees, and the reason is this, the court does draw a line, Judge, and I didn't mean to be rude, the court is drawing a line and saying, if there's an actual judgment, that's a different thing than a future cause of action, and they're a bunch of cases on that point. But where land where is going through directly addresses your point is it's drawing the line in the very first paragraph of the opinion, and it says, if it is a personal injury, it's embarrassment, it's something unique to you, that may not be transferable to the other spouse that they belong to you uniquely. You lost your arm, you got something for that pain and suffering part. But to the extent it's compensatory, it's some other piece that is absolutely a distributable right under New Jersey law. And what nails that down is barrel at the end because barrel is a trust in the state's case, which is a lot like every one of the cases we're going to have here because the person is dead. I just wanted to before we lose a time that the appellees I'm sure of and refer to this, but I thought you're strongest argument wasn't in New Jersey statute. It is that defines personal property to include choices in action here. The project you have. I think that was a strong point. One call and one dash two is absolutely clear. A chosen action is covered. And this is a chosen action. That doesn't go to my doesn't that go to my question. What does what is the nature of the injury that gets rise to the chosen action? Is it a personal injury? Or is it the kind of thing you mentioned earlier with the embarrassment arising from the mouth? You're trying to just look at long worth and say it separates the personal injury, which is personal individual not assignable from the personal embarrassment. I might have that backwards. But why isn't what New Jersey has in mind here? Just a good old fashioned loss of income. The kind of claim that can be assigned. And if that's the case, why would these kinds of injuries which seem much more like a malpractice injury? Travelling the chosen action. Why would that be the kind of thing that could be assigned? Because these are people who died and each one of them had a they have several they have their own personal pain and suffering. They also were sources of income. They were people who lived. They had an economic value in them to themselves

. That's why I think that when you look at New Jersey Rico as a broad remedial statute. What do we know about Billaxon? Somebody's driving down the highway. Someone's side swipes them. They have a cause of action against the person who sidespipes them. Can that cause of action be assigned under New Jersey law? Does that personal injury cannot be? Once as a judgment under Judge Wantzays the answer is yes prior to that. That was rather than that. The judgment can be assigned. That's easy. Right. But can the injury, the kind of injury we're talking about? Can that be assigned under Mattal Burowce, which is the case we've decided from the Chancellor Division. The answer is yes. What if the person goes to the hospital, this malpractice, and this claim against the position for malpractice? Can that be assigned? That's the distinction I think you're trying to make. I think the answer is it can, Judge, but I want to answer the question accurately at his respect for the court. It's too simple to say yes or no because the question is what are the causes of action? Is the cause of action when you file a complaint, right? They file for pain and suffering, which is part of why I start splitting it very carefully here. And then you get to the other parts of the action, which are the parts of income, the parts of loss of value, loss of consortium, all those other claims, which are assignable because they belong to the and part to the other person. So there are clearly parts of the complaint that the court here is not, it didn't, what they're citing Amorado for is a simple proposition that no choice of action can ever be a rise out of a person's reaction. And the answer is that simply falls. That's not how the New Jersey courts have looked at it. One final question for 30 seconds or less. What's Mr. Hawkec got to do with this case? Why are you bringing him in to this picture? Because each of the individuals that are identified, and let me give it a very one second, Judge. Here it is. Because he was a counsel, not general counsel over a few years in the 80s, right? How could he identify in our complaint of page 32 paragraph 41 of our complaint? I believe he was one of the people who was maintaining the destruction of that, maintain the position. I'll go back and check the record, Your Honor. I thought he was one of the people who took the position that it was okay to have this ongoing conspiracy and this representation. Thank you. Thank you, Your Honor. Thank you. It's probably a data to yourself from your fridge to the way back machine. I guess I'm making a movie at that time. I think I'm dating myself more and more every day. Join the club. May I please the court? I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. I'm not going to be a court. The problem is a least from my perspective. New Jersey, which has no connection but for the personal jurisdiction issues raised that the ASF is there. But the five Ohio plaintiffs and the New York plaintiffs have no connection with the district court of New Jersey. And so I do think there are, while there are obviously issues raised by the complaint, the threshold issues of where this case should proceed and how it should proceed, I do think it runs straight into not only the Anti-Injunction Act, but the whole basis of the separation of federal and state courts. The Judge Chessler, let me just defend Judge Chessler a second, he had a lot in front of him and there was clearly some shifting. There's no problem, but I'm pleased. Yeah, there's a lot of shifting going on in terms of the relief sought. I think you saw some of that this morning as well. Did you see that? Did you see that there's a play this choice? That it's exactly your honor. I think plaintiffs made a tactical decision and if you look at this, the judicial record here, they re-pled after Walmart V-Dukes came down and I understand that. They said, okay, we have a problem with the class here. So they re-pled some of the class allegations to try to address Walmart V-Dukes

. But that doesn't get them there. Let me start off with a third circuit opinion that hasn't been discussed, but I think is a very important opinion. And that is Judge Joseph F. Wise in USD versus Machisco saying that the Anti-Injunction Act is not some mere anachronism that could be evaded by creative pleading or procedural technicalities. The substance of it is, are you trying to call into question the underlying state court? Well, what he's asking for now is let's focus on the notice and the formation of the trust. How would that in any way implicate any of the state court checkances? Go back to the state court and the state court can say, I'm sorry, but the judgements should raise your kind of applies. You're out of court. I'm going to motion to dismiss. How would that in any way interfere with that or get us into a situation where a federal court is telling the state court you can't proceed? A couple of responses, Your Honor. First of all, the record is pretty clear. There are over 100 asbestos cases against BASF pending today in state and federal courts all over the country. And there's no motion as far as I know where there's an allegation of continuing document destruction. You're saying that the evidence in this warehouse, wherever it is, lack of 52, whoever this evidence is stashed, that evidence is available in all of the currently pending or those cases which could be brought assuming those statute of limitations issues, that evidence would be available. Yes, Your Honor. There was no serious allegation in front of Judge Chessler that this is an ongoing issue. And in fact, if it were an ongoing issue, those 100 courts across the country, they would be very busy addressing it and rightfully so. There sounds like an agreement to me. No, with Mr. Pollock, thank you, Will. No, is it funny for it's coming? The final statement? No, Your Honor, I'm saying is that what we're litigating is our actual not hypothetical claims about what could be brought and what should be done. There are actual litigation cases going on today on the asbestos dockets in cases including in New Jersey. And so I'm saying that to the extent there's any issue with a plaintiff who has a pending asbestos claim against VASF. And what's happening in terms of the discovery in that case, that's actually being addressed by trial judges now. So I'm saying that's not an exception to the Anti-Injunction Act or to the Federalism Principle that all of a sudden now Judge Chessler could come in as a pseudo-discovery master and say, I have some issues here and I'm going to corral them all in and act in both in terms of spoliation and I guess a notice program and address those. So let me address the notice program as well. Is that again, both notice and spoliation, I don't think those were assigned as appellate errors coming up in terms of this is what we really want. We really want to notice program and an injunction as to spoliation. That's a shifting ground and I think it's a shifting ground in face of Atlantic and the clear and machisco from the third circuit that you can't call to a completed state court actions. So now this is a new theory that wasn't addressed in front of Judge Chessler. Nor do I think it would pass muster in front of Judge Chessler. To the extent there's notice, they would have to be a class and it would have to be certified in this court well knows. There are obviously wide range requirements under rule 23, but there's not a free flowing notice cause of action for court sitting in equity. And that is an in 1970 case. You said there's no stumbles on it and they're changing their position to take advantage of that. Well, you're on I think so because if you look at the first complaint, the first complaint was very clear that they said we would like to undo state court judgments. Now we started to brief up Atlantic. No, it's been amended. And now it's been amended. But now they still say in paragraph 16, paragraph 362, prayer be for relief that they want to direct the parties, the ASF, from taking advantage or raised Udicada or statute of limitations issues. And again, that comes back to. Let's let's forget that seems to me to be right in the middle of the NA in conjunction that the focus on the other part which may not even be the main more unless I misinterpreted the Mr. Pollock is now pressing. The part was asking for a declaration of fraud. How does that get under the NA in conjunction that when we look at this or send it back and ask the district court to look at it and say, you determine whether or not this fraud. Let's assume for a second there's no problem with a advisory opinion there. There may be. I don't know. So I have two issues. I wanted to address Judge Fuentes and Judge Ambrose questions about the analytical framework. I think you asked about fraudulent concealment versus fraud and words versus conduct. And so if I may, Chief Judge, we'd like to just address that frame more quickly and then talk about why the fraud is the nicest way anyone's ever told me, shut up. I'm going to answer their questions first. You're very well done, Mr. Mayor. You're very well done. Very smooth. We should be good transcript. Very smooth. Okay. So what I learned in Scranton, I'm not going to ask your question right up to that. And it's the advisory opinion issue in terms of fraud

. They still have to approve a substantive claim for a plaintiff. So a plaintiff here has to approve a substantive claim. And I think they're putting the card before the horse saying, well, all we really want is some class type relief on behalf of an individual. And that's not what is permitted. They have to prove up their substantive claim in order to then seek relief. There's no free flowing relief in terms of, I'm a plaintiff and I want to approve. Some elements and I want to go to Ashmas versus Calderon, the habeas case from the Supreme Court. And they, I think that's very analogous here. What they're trying to do is have a court find some issues, but not all issues. Why isn't it cast 22? Because if they proceed that way, I agree that gets around the article three case for controversy advisory opinion issue, but they're going to run smack dab and erase you to cut it. They're going to go in and they're going to find out where we're going to go in. We've got these other cases and why aren't you bombed by that? Why isn't that reached to the card? Unless they can alleged that those prior judgments were obtained by fraud, what good is it going to do? If they don't put the card before the horse, then I can have a card or a horse, since they're going to be out of court. I agree they're going to have problems with their case. And maybe I'm missing your honor, but I don't think they could prove up a part of their claim and then use that ruling to go and reopen state court cases. I think that- Are you talking about spoliation claim, rhetorically? I think in terms of the injunctive and declaratory relief sought, they cannot take injunctive or declaratory relief and go to state court and- And you say you can't because of the anti-injunction act? Because of the anti-injunction act. No, I can't. If they go to state court and let the state court decide that, then there's no problem under the anti-injunction act. The state court can say, in short, we're not going to do it, or the state court can say, given this, the judgment that was sent to be for is not valid, it's void or void ab initio, and we're going down to the claim, but it's not a federal court in that situation in return with the state court, isn't it? Well, I think that still gets to the anti-injunction act, right? That's the whole problem of having a federal court decide some issues and then taking that paper to the state court. And a state court can do whatever it wants? Well, except in a state court, no, I have a federal court order that has X, Y, and Z. And if you go to the anti-injunction act, Judge Prudence, I think the two key points are unanimous Supreme Court and Smith V. Bay are saying any doubt as to resolving the application act, has to be resolved in favor of the act. And two, again, come back to Machisco and Hill saying, you can't mistake title for effect. Judge Wise's phrase, there's a turn to great phrase, don't mistake title for effect. And the fact that the effect of this order is to call into question, it's not just rendered an all-be, it's to call into question the effectiveness of the prior state proceeding. And that's why I think your honor, it still runs into the anti-injunction act. So, where you and I started, the question that you posed, this all gets to where is the proper forum? Where is this? Why are we going? Why are we asking Judge Chessler to litigate cases when they were litigated in Ohio and New York? And those courts can decide what they want as to whether cause of actions exist to your question or whether there's a 60B issue under their law. Is this not improperly in the Jersey? Part of the case is not improperly in the Jersey. Well, I don't think it was filed, there's no personal jurisdiction problem. I think though there is a anti-injunction act problem of what's the, what is the connection of this court to the underlying litigation? And again, your honor to kind of illustrate this, Judge, and I've, it's Judge Weiner, Judge Weiner, the Eastern District Phil Dalfi Judge, he had a whole host of these Talkas Vestas cases here in Philadelphia. So, it's again, this question of why is Judge Chessler being asked to litigate these cases from Ohio and from New York? And it's putting him in a position. And to your question, Chief Judge McKee, about what's happening here in the relief and how come the pleadings have spun out as they have, it all has to do with Walmart, Comcast, all the class actions, they have serious class problems. And so, they're trying to plead around that. But that doesn't, that's not a license to kind of get around the anti-injunction act. There, there's no real 23 issues before us today, right? There, there aren't, well, there aren't 23 issues technically in front of you, but to the extent the court is kind of looking at the pleadings and where we are. They help me understand that. How are, how's the rules 20 team before us? It's, it's, no, it's not. The thing that's before you, I do think it's part of the judicial record is below there is a motion to strike the plead, to strike the class allegations. And this is on page 40 of, eight of our brief. And it was very telling because what the plaintiffs then said is, we are not going to have many trials. We are not going to prove up the elements of the underlying asbestos cases. And so, I think that is, so rule 23 is not in front of you, but certainly there are admissions as to what they're actually seeking, that they're not seeking to prove up their claims. It then kind of leads into a question you raised and that is the fraudulent concealment claim. And how is that pled? So, first let me say in terms of judges Ambrone Fuentes, the analytical framework I've looked at is words are covered by litigation privilege. Words are words are words are communication, okay. Communications. And I think again, the new initial proceeding, Lloyd men and they use both privilege and immunity. And I think that's telltale sign. And they also say the scope is extraordinary. Conduct, I think, is an exception. And this is made clear in our briefs is an exception to the litigation privilege. And thus, fraudulent concealment, the, the sporeliation, the conduct is an exception to the litigation privilege. And so now, the next step in the framework is have they pled up a fraudulent concealment claim by conduct. And I actually don't think that they have, well the conduct would be, the actual taking the after you settled Westfall, taking the and having a confidentiality agreement entered into taking the evidence and putting sequestering it away. That that would seem to be the, that has to be conduct. They can't be words. I agree with you. You said they didn't plead it. I suppose. Well, I think they played some of your honor. I don't think it's sufficiently pled. And so I agree with you on conduct. But here's why I say it's not sufficient. The new Jersey, the New Jersey litigation privilege. I think they're saying we're not going to have litigation about litigation. We're not going to have litigation. Hang on for a second. Remember, all they have to do is, I mean, you've got it voluntarily. Got it. But it doesn't mean that they haven't said something plausible with regard to this. And if maybe they may ask for, you know, a chance to amend again, but it seems to me that you've got to, on the fraudulent concealment part, you've got a, you've got probably the weakest part of your argument. So let me address that. The, as I was saying, I think that fraudulent concealment is obviously exemptive from the litigation privilege. And so, I think the New Jersey courts have said, we're going to have an exception with litigation about litigation. It's a higher standard. And so when you marry that with it ball promptly, it's not just the recitation of the elements that there were cases, bad things happen in the cases. My case, I would have gotten more in my case. I actually don't think that's enough, especially on the allegations here where why isn't it enough to say that you destroyed evidence and concealed evidence. And if I had had that evidence, I would have settled my case for, for two, I mean, I'd have settled it all. I might have wanted to go to trial. For, for, for, for three reasons, one is that it has to be more than that. And we know that from Zwitt versus New York Times, New Jersey Court on fraudulent concealment, where the New York Times to New York Times has destroyed the printing press issue. No, no doubt about it, undisputed. And the New Jersey Court said, but that's not enough in this case because one of the defendants, one of the defendants had an unusual procedural posture and they were dismissed. And the Court said, which I think goes to the standard in New Jersey, if you're going to have litigation about litigation, you have to at least make some showing of a case within a case. And so why? What's showing? Well, I think it has, but it has to be more than threadbare pleading. And so what, so let me take the malpractice example, because I think this is very analogous in terms of litigation about litigation. If somebody misses the statute of limitations, we're going to sue you in New Jersey, statute of limitations was missed, I was harmed. And what courts, including New Jersey, they know, no, no, no, you have to prove more that you would have prevailed in that case, but for the statute of limitations. And I think here, when you have cases with anywhere, the five plaintiffs, anywhere from 39 to 221 different defendants, they haven't pled what happened to those defendants, whether these plaintiffs admitted later on that they had dismissed their case because of a variety of reasons, there has to be something more than mere threadbare allegations. And it's really different from that situation because the nature of the harm, you're alleging, you're alleging that there was a specialist in your clients' project that they brought these suits, that they were injured as a result of the specialist in the product. Maybe this is what you're going. It seems to me a natural inference that they're saying that had we known, but for your client's act of fraud and sporylation, that we would have either gone to trial or settled for more realistic amount rather than having these new consultants. And you're, I guess, saying that, what Judges just said, that there's no causal link there, but seems to me the causal link is endemic in the pleading. Is Toambe, do you think Toambe requires that kind of precision in this kind of a case? I think two things, Johnner, I think Toambe does require more in this type of case, especially where there are multiple defendants and issues about alternative causation and whether the plaintiffs, because otherwise the plaintiffs would always say, every plaintiff, every party even defendants, always say, my settlement could have been better if I did X. We all as litigators think that a year later, right? Wait, because we even have evidence that it did something wrong, but my settlement could have been higher. But that's where I come back to Zwick and why I think New Jersey law? Basically, if they could do a comparison, I mean, for example, in West Fall when it was found, or a Patawano when they settled, both where they settled for a higher amount. I don't know. So they might be able to develop that. There's that possibility. They have to show some kind of damage and that's the way they would try to show it. But I think it has to be more, Your Honor, when you have a case, the judicial record here is clear. There are anywhere from 39 to 221 defendants for each plaintiff. So it's not just, well, gee, you look at prior asbestos settlements in terms of the defendant. You look at what this plaintiff actually alleges in terms of their causation. Let's say they worked in a breaks factory and their only allegation is that they once used might used a tau product on one day. I think that would, you would have to actually say, my client worked in a break factory. They settled with Bendix for X millions of dollars. They just missed the other 220 defendants because there was no, there was no other causation because that's within their power to plead. And then in terms of what's in front of this Court, Your Honor, they have not appealed. They have not appealed the leave to amend that they were not properly given leave to amend. I think they've waived that. And in fact, I think they've come to this court already, at least until this morning, in their pleading saying, we like our complaint. There are no other facts we would have had dused, adduced in order to meet it both formally. So that's, I think they've waived the appellate issue in front of the Court in terms of their seeking leave to amend. But they have said that they would have settled settlements would have been for more. And if that's the case, because of the fraudulent concealment, that is the equivalent of damage. It is damage. I'm sorry. I so I come back to the right. The elements of fraudulent concealment are that there's a legal obligation. It was material. It was not reason

. But here's why I say it's not sufficient. The new Jersey, the New Jersey litigation privilege. I think they're saying we're not going to have litigation about litigation. We're not going to have litigation. Hang on for a second. Remember, all they have to do is, I mean, you've got it voluntarily. Got it. But it doesn't mean that they haven't said something plausible with regard to this. And if maybe they may ask for, you know, a chance to amend again, but it seems to me that you've got to, on the fraudulent concealment part, you've got a, you've got probably the weakest part of your argument. So let me address that. The, as I was saying, I think that fraudulent concealment is obviously exemptive from the litigation privilege. And so, I think the New Jersey courts have said, we're going to have an exception with litigation about litigation. It's a higher standard. And so when you marry that with it ball promptly, it's not just the recitation of the elements that there were cases, bad things happen in the cases. My case, I would have gotten more in my case. I actually don't think that's enough, especially on the allegations here where why isn't it enough to say that you destroyed evidence and concealed evidence. And if I had had that evidence, I would have settled my case for, for two, I mean, I'd have settled it all. I might have wanted to go to trial. For, for, for, for three reasons, one is that it has to be more than that. And we know that from Zwitt versus New York Times, New Jersey Court on fraudulent concealment, where the New York Times to New York Times has destroyed the printing press issue. No, no doubt about it, undisputed. And the New Jersey Court said, but that's not enough in this case because one of the defendants, one of the defendants had an unusual procedural posture and they were dismissed. And the Court said, which I think goes to the standard in New Jersey, if you're going to have litigation about litigation, you have to at least make some showing of a case within a case. And so why? What's showing? Well, I think it has, but it has to be more than threadbare pleading. And so what, so let me take the malpractice example, because I think this is very analogous in terms of litigation about litigation. If somebody misses the statute of limitations, we're going to sue you in New Jersey, statute of limitations was missed, I was harmed. And what courts, including New Jersey, they know, no, no, no, you have to prove more that you would have prevailed in that case, but for the statute of limitations. And I think here, when you have cases with anywhere, the five plaintiffs, anywhere from 39 to 221 different defendants, they haven't pled what happened to those defendants, whether these plaintiffs admitted later on that they had dismissed their case because of a variety of reasons, there has to be something more than mere threadbare allegations. And it's really different from that situation because the nature of the harm, you're alleging, you're alleging that there was a specialist in your clients' project that they brought these suits, that they were injured as a result of the specialist in the product. Maybe this is what you're going. It seems to me a natural inference that they're saying that had we known, but for your client's act of fraud and sporylation, that we would have either gone to trial or settled for more realistic amount rather than having these new consultants. And you're, I guess, saying that, what Judges just said, that there's no causal link there, but seems to me the causal link is endemic in the pleading. Is Toambe, do you think Toambe requires that kind of precision in this kind of a case? I think two things, Johnner, I think Toambe does require more in this type of case, especially where there are multiple defendants and issues about alternative causation and whether the plaintiffs, because otherwise the plaintiffs would always say, every plaintiff, every party even defendants, always say, my settlement could have been better if I did X. We all as litigators think that a year later, right? Wait, because we even have evidence that it did something wrong, but my settlement could have been higher. But that's where I come back to Zwick and why I think New Jersey law? Basically, if they could do a comparison, I mean, for example, in West Fall when it was found, or a Patawano when they settled, both where they settled for a higher amount. I don't know. So they might be able to develop that. There's that possibility. They have to show some kind of damage and that's the way they would try to show it. But I think it has to be more, Your Honor, when you have a case, the judicial record here is clear. There are anywhere from 39 to 221 defendants for each plaintiff. So it's not just, well, gee, you look at prior asbestos settlements in terms of the defendant. You look at what this plaintiff actually alleges in terms of their causation. Let's say they worked in a breaks factory and their only allegation is that they once used might used a tau product on one day. I think that would, you would have to actually say, my client worked in a break factory. They settled with Bendix for X millions of dollars. They just missed the other 220 defendants because there was no, there was no other causation because that's within their power to plead. And then in terms of what's in front of this Court, Your Honor, they have not appealed. They have not appealed the leave to amend that they were not properly given leave to amend. I think they've waived that. And in fact, I think they've come to this court already, at least until this morning, in their pleading saying, we like our complaint. There are no other facts we would have had dused, adduced in order to meet it both formally. So that's, I think they've waived the appellate issue in front of the Court in terms of their seeking leave to amend. But they have said that they would have settled settlements would have been for more. And if that's the case, because of the fraudulent concealment, that is the equivalent of damage. It is damage. I'm sorry. I so I come back to the right. The elements of fraudulent concealment are that there's a legal obligation. It was material. It was not reason. The plaintiff could not have reasonably obtained access to the evidence otherwise. Defended intentionally withheld, altered, or destroyed the evidence. And that the plaintiff was damaged in the underlying litigation by having to rely on a record that did not contain the concealed evidence. Yes, Your Honor. From Lordman, those are the, I'm sorry, from Rose and Blit. They're the, they're the elements. And then Rose and Blit goes on to say that the fundamentals of the underlying litigation will also require exposition. And that's what I'm saying. In these type cases with multiple defendants, you require exposition. And this isn't just my advocacy that they don't want to do it. This is where I come back to what they told Judge Chessler. They said, and this is in the record at 3546, in their opposition to strike the class cert motions, this is one of the critical phases. Because the claims here are for lost causes of action, the plaintiffs have no obligation to prove elements of their underlying personal injury, including claims for product liability in this case. And why would you correct that a litigant who was deprived of the use of evidence and settled the case could never, ever succeed in having that case re-litigate? No, I don't think, I don't think never. I could, I could actually foresee situations where a plaintiff would say, I sued these defendants. Here's what my settlement with these defendants. Here's what these defendants did. Here's my injury and my exposure to now the offending party. And so why, so I think that illustrates that it's more than just. What if you say that I settled and if I had known that this evidence existed, I would have settled, I would not have settled for the amount that I settled. So I respectfully, Your Honor, I don't think that's enough because I think that would swallow up the exception. Every plaintiff would say that. You're saying, you know the Supreme Court Nick Bonfrombe said there weren't scuddling the concept of lotus pleading, although the commentator said that there were scuddling lotus pleading. The court said it wasn't scuddling lotus pleading. You're saying in effect that we have more more burden on the lotus pleading that Nick Bonfrombe results in more than lotus pleading because the the ABCD posture you laid out before it seems to me to get you there in terms of causation if the test is lotus pleading. It doesn't get you there if the pleading requirement is more heightened than the lotus pleading. So, Your Honor, I don't know, I don't know if this court has resolved that issue, but with these substantive claims, because the only substantive claim that I think is left after litigation privileges fraudulent concealment, and I think that's a higher standard in terms of some exposition to pick up Rosenblit, that there's something that has to be pled that's more than fraud. Yeah, and also a case within a case that there that's something you have to provide an exposition of something more than just following the elements. And that's what I'm getting to if you look at their complaint. Yes, any lawyer could just follow the elements, but I think here they're have to have some exposition with so many defendants, so many causation issues that this court has dealt with over the years, that there has to be something more than just saying I would have settled for more because that would swallow the exception. You would always say that. Can I ask you about the litigation privilege? Yes, Your Honor. Because I asked Mr. Poglick also I have found no case anywhere that would allow for the invocation of the litigation privilege where a lawyer deceives or misleads or lies in the course of litigation. So I've looked into Jersey, Your Honor, and I think Rubberton is deciding our briefs and that doesn't that case does not deal with fraud, does it? Well, it's false statements. Our false statements covered by litigation. It's a piece of process. Yeah, right. But whether whether there are false or fraudulent statements, that court says a statement made in the course of a judicial proceeding is absolutely privileged and wholly immune from liability. We cite an arcade in our in our in our briefs, jiles from the district of New Jersey. I just want to ask you one. I mean, if we talk your view, would it be the rule that any time a lawyer deceives or misleads or lies or makes a misrepresentation in the course of litigation or in the course of judicial proceedings? Is it your rule that those statements would be or qualify for the immunity? You're under New Jersey. Okay, and I think there are different states, but yes, under New Jersey, even the New Jersey Supreme Court has says it is extraordinary in scope and then they go on to say since it's the privilege or immunity is extraordinary in scope, the remedies for you are to seek sanctions initiate disciplinary proceedings. There may be criminal proceedings, but it's not we're not going to have litigation over words and litigation. So yes, Sean, I know it may be appealing from a profession, unappealing from professional responsibility standpoint to think. I'm a slow decision. Stand point also. Pardon me? To a small test standpoint also. Right. How could we have this test? But I think New Jersey has made a policy decision that this and even the loygment case, they tell loygment, you know, someday you're going to want to take advantage of this litigation privilege. And so, jiles, the district court of New Jersey. You mentioned professional responsibility. Yes. Indeed, professional responsibility, um, sides that a lawyer shall not make a note, shall not knowingly make a misled, misled statement or statement known to be false in any judicial proceed. Agreed. I totally embrace that. Your honor. The litigation you say that doesn't matter. Okay. Okay. Gina Saf has a practicing lawyer in the bar

. The plaintiff could not have reasonably obtained access to the evidence otherwise. Defended intentionally withheld, altered, or destroyed the evidence. And that the plaintiff was damaged in the underlying litigation by having to rely on a record that did not contain the concealed evidence. Yes, Your Honor. From Lordman, those are the, I'm sorry, from Rose and Blit. They're the, they're the elements. And then Rose and Blit goes on to say that the fundamentals of the underlying litigation will also require exposition. And that's what I'm saying. In these type cases with multiple defendants, you require exposition. And this isn't just my advocacy that they don't want to do it. This is where I come back to what they told Judge Chessler. They said, and this is in the record at 3546, in their opposition to strike the class cert motions, this is one of the critical phases. Because the claims here are for lost causes of action, the plaintiffs have no obligation to prove elements of their underlying personal injury, including claims for product liability in this case. And why would you correct that a litigant who was deprived of the use of evidence and settled the case could never, ever succeed in having that case re-litigate? No, I don't think, I don't think never. I could, I could actually foresee situations where a plaintiff would say, I sued these defendants. Here's what my settlement with these defendants. Here's what these defendants did. Here's my injury and my exposure to now the offending party. And so why, so I think that illustrates that it's more than just. What if you say that I settled and if I had known that this evidence existed, I would have settled, I would not have settled for the amount that I settled. So I respectfully, Your Honor, I don't think that's enough because I think that would swallow up the exception. Every plaintiff would say that. You're saying, you know the Supreme Court Nick Bonfrombe said there weren't scuddling the concept of lotus pleading, although the commentator said that there were scuddling lotus pleading. The court said it wasn't scuddling lotus pleading. You're saying in effect that we have more more burden on the lotus pleading that Nick Bonfrombe results in more than lotus pleading because the the ABCD posture you laid out before it seems to me to get you there in terms of causation if the test is lotus pleading. It doesn't get you there if the pleading requirement is more heightened than the lotus pleading. So, Your Honor, I don't know, I don't know if this court has resolved that issue, but with these substantive claims, because the only substantive claim that I think is left after litigation privileges fraudulent concealment, and I think that's a higher standard in terms of some exposition to pick up Rosenblit, that there's something that has to be pled that's more than fraud. Yeah, and also a case within a case that there that's something you have to provide an exposition of something more than just following the elements. And that's what I'm getting to if you look at their complaint. Yes, any lawyer could just follow the elements, but I think here they're have to have some exposition with so many defendants, so many causation issues that this court has dealt with over the years, that there has to be something more than just saying I would have settled for more because that would swallow the exception. You would always say that. Can I ask you about the litigation privilege? Yes, Your Honor. Because I asked Mr. Poglick also I have found no case anywhere that would allow for the invocation of the litigation privilege where a lawyer deceives or misleads or lies in the course of litigation. So I've looked into Jersey, Your Honor, and I think Rubberton is deciding our briefs and that doesn't that case does not deal with fraud, does it? Well, it's false statements. Our false statements covered by litigation. It's a piece of process. Yeah, right. But whether whether there are false or fraudulent statements, that court says a statement made in the course of a judicial proceeding is absolutely privileged and wholly immune from liability. We cite an arcade in our in our in our briefs, jiles from the district of New Jersey. I just want to ask you one. I mean, if we talk your view, would it be the rule that any time a lawyer deceives or misleads or lies or makes a misrepresentation in the course of litigation or in the course of judicial proceedings? Is it your rule that those statements would be or qualify for the immunity? You're under New Jersey. Okay, and I think there are different states, but yes, under New Jersey, even the New Jersey Supreme Court has says it is extraordinary in scope and then they go on to say since it's the privilege or immunity is extraordinary in scope, the remedies for you are to seek sanctions initiate disciplinary proceedings. There may be criminal proceedings, but it's not we're not going to have litigation over words and litigation. So yes, Sean, I know it may be appealing from a profession, unappealing from professional responsibility standpoint to think. I'm a slow decision. Stand point also. Pardon me? To a small test standpoint also. Right. How could we have this test? But I think New Jersey has made a policy decision that this and even the loygment case, they tell loygment, you know, someday you're going to want to take advantage of this litigation privilege. And so, jiles, the district court of New Jersey. You mentioned professional responsibility. Yes. Indeed, professional responsibility, um, sides that a lawyer shall not make a note, shall not knowingly make a misled, misled statement or statement known to be false in any judicial proceed. Agreed. I totally embrace that. Your honor. The litigation you say that doesn't matter. Okay. Okay. Gina Saf has a practicing lawyer in the bar. No, I've just never been accused of it. I hopefully never will, Your Honor. But in terms of my reading of the New Jersey Supreme Court and the law there, they've made a policy decision that actually brings this whole circle. What's what's law actually does apply and under a choice of law analysis. But before you even get there, is it hasn't been waved? And what is this circuit's law on whether it can be waved? And Mr. Saad, I'm not sure it's a question. It's a statement that we have back where we started from. But we let you go, obviously, try to bid as we let Mr. Poggle. We still have two of your colleagues here from, so let me move on and here, Mr. Shenmuegum, your center. Would you like me address waiver or the choice of law? And I'm sorry, just, you know, do it in a couple of minutes? I think I could. I would, let me say I'll do it very quickly. I adopt. That wasn't a question. Oh, because you're very quickly. It may not be my very clear. So let's hold it to two minutes. Okay. Two minutes. Yes, Your Honor. I adopt judge pointed or judge Ambrose recitation of third circuit law on this. And I acknowledge that it's somewhat unclear. And but I think at the end of the day, okay, they plated under New Jersey common law. They didn't object to being briefed under New Jersey common law, getting back to your question about rule 23, because I think they realized they have a huge claxon problem in terms of applying 50 states to these issues. So they said, okay, we're going to brief it under this issue. So they did it underneath and in the worst. So judge Chesler had that. Nobody objected. And I don't even think they've objected on appeal as an assignment of their. And finally, Your Honor, then if even if the court were to find that it's not waveable and they somehow preserved it at the worst case scenario is that you would demand to judge Chesler for him to conduct a choice law analysis, which may require an evidentiary hearing in terms of trying to decide which law applies. Under two minutes. No, it was under two minutes. Thank you, Your Honor. 55 seconds. It would be very good. It's amazing. You put all these notes together. You never used them. I do the same thing. All the stuff. The sound of the computer. Didn't hear it. Don't know. Good morning, Your Honor. It's candid. Chanby. Hanby. Hanby. Hanby. Hanby. Hanby. I can't and Chan the gown. Chan again. Yes. Thank you. I miss my notes that again. I apologize for that. I don't know. My guess is that our dialogue with Mr. A

. No, I've just never been accused of it. I hopefully never will, Your Honor. But in terms of my reading of the New Jersey Supreme Court and the law there, they've made a policy decision that actually brings this whole circle. What's what's law actually does apply and under a choice of law analysis. But before you even get there, is it hasn't been waved? And what is this circuit's law on whether it can be waved? And Mr. Saad, I'm not sure it's a question. It's a statement that we have back where we started from. But we let you go, obviously, try to bid as we let Mr. Poggle. We still have two of your colleagues here from, so let me move on and here, Mr. Shenmuegum, your center. Would you like me address waiver or the choice of law? And I'm sorry, just, you know, do it in a couple of minutes? I think I could. I would, let me say I'll do it very quickly. I adopt. That wasn't a question. Oh, because you're very quickly. It may not be my very clear. So let's hold it to two minutes. Okay. Two minutes. Yes, Your Honor. I adopt judge pointed or judge Ambrose recitation of third circuit law on this. And I acknowledge that it's somewhat unclear. And but I think at the end of the day, okay, they plated under New Jersey common law. They didn't object to being briefed under New Jersey common law, getting back to your question about rule 23, because I think they realized they have a huge claxon problem in terms of applying 50 states to these issues. So they said, okay, we're going to brief it under this issue. So they did it underneath and in the worst. So judge Chesler had that. Nobody objected. And I don't even think they've objected on appeal as an assignment of their. And finally, Your Honor, then if even if the court were to find that it's not waveable and they somehow preserved it at the worst case scenario is that you would demand to judge Chesler for him to conduct a choice law analysis, which may require an evidentiary hearing in terms of trying to decide which law applies. Under two minutes. No, it was under two minutes. Thank you, Your Honor. 55 seconds. It would be very good. It's amazing. You put all these notes together. You never used them. I do the same thing. All the stuff. The sound of the computer. Didn't hear it. Don't know. Good morning, Your Honor. It's candid. Chanby. Hanby. Hanby. Hanby. Hanby. Hanby. I can't and Chan the gown. Chan again. Yes. Thank you. I miss my notes that again. I apologize for that. I don't know. My guess is that our dialogue with Mr. A. staff was already gotten into a lot of the issues that you wanted to cover. It has your honors. So with the court sleeve, I think what I was saying is that as he said, you know, we bought this problem. They took over, I guess, angle hard is that. You know, we bought the farm. In your case, your client is part of the farm. Yes, that is certainly correct. And so I think what I'd propose to do today with the court's leave is very briefly to address the anti-injunction act and article three issues because I think we would acknowledge that those issues are not dispositive of the entirety of the case. They dispose of only a portion of the case, the portion relating to injunctive and dreadful. Where do you go back? Are you saying that when it goes back for these other cases, when you say it's not dispositive of the entire case? I assume you're talking about all those other specimens cases sitting up there. Well, I'm talking about this case, the case that the court has before it because the plaintiffs have sought some other types of relief. And so the court would need to address the validity of plaintiffs claims under state law. And so I think with the court's, which state? Well, New Jersey law, because that is, which law would New Jersey look to? Well, and why don't I turn to that issue? And I do want to say just a couple of words about the anti-injunction act because there are a couple of issues specific to my client, my clients that have been addressed today. But on this question of choice of law, it is certainly true, as Mr. ASAF said, that this case has been litigated on the assumption that New Jersey law applies. And I do think that the better view is that choice of law can be waived, which is to say that if the party's litigate the case- Certainly, have the circuits lined up with the 5, 6, and 7th go your way. Possibly the second, I'm not so sure. Yes, and there is some authority from this court as you acknowledge, and I would say, we are all in a place. This court is all over the place. Well, that is true, but I tell it to my right, but there is substantial recent authority for the proposition that when parties do not raise conflicts of law, the court can apply the law of the forum state. Now, of course, choice of law is, ultimately- Ultimately, you'd have to make is that, nearly by being in bank, impliedly overruled the 1944 case and the 1958 case in Parkway, Bigger. Yes, and I would just say this. The one thing that I would cite to this court is the second restatement on conflict section 136, comment H, which I think stands for the proposition that when no party has raised choice of law, a court may apply the law of the forum state. And after all, you look to New Jersey law when deciding this question of conflicts of laws, because New Jersey is the forum state and as Judge Amber pointed out, New Jersey is a second restatement state. But I do think it's important to kind of understand the backdrop of this case, which I think underscores why it makes sense to apply New Jersey law here. The plaintiffs brought these state law claims and they proceeded under New Jersey law. And obviously, when we moved to dismiss, we asserted the litigation privilege under New Jersey law. At that point, the plaintiffs made no effort to rely on the law of other jurisdictions. I suspect in part, precisely because plaintiffs wanted to maintain their ability to proceed on a class-wide basis. And so Judge Chessler decided this issue as a matter of New Jersey law. Now, I think critically, before this court, the plaintiffs also stopped short of asserting that Ohio law or the law of any other jurisdiction applies. The plaintiffs in a footnote, seven of their brief at page 23, simply saying, I'm quoting, have the district court conducted a choice of law analysis and determined Ohio law to apply? There's no question that defendants would not be permitted to avail themselves of Ohio's legal argument. And you're only argument is that they waived it. Well, that is correct, both before the district court and before this court. And we certainly think that choice of law can be waived and that that is the better view as reflected in that provision of the second restatement, which I cited. I would note parenthetically that we dispute the proposition that under Ohio law, it is clear that the litigation, which would not apply to fraud points, which would support you, which is a state law, not a Supreme Court case, and then you have to know the district of Ohio case and Kramer, which seems to go the other way, but it's a district court. Yes, but I think that the more critical point is that the plaintiffs here really are litigating this on the assumption that New Jersey law applies. And at least above the line in their brief, they simply take issue with our characterization of New Jersey's expansive litigation privilege. And since we're on the subject, why don't I just go to that point very briefly, a judge quantize and address some of your questions with regard to New Jersey's litigation privilege? I think with respect that it is quite clear that under New Jersey law, the litigation privilege applies beyond its sort of traditional common law. It applies to communications does it not? You can't apply to conduct. Well, that is correct. And that is why we are invoking the litigation privilege as perclusive of the entirety only of the fraud claim. And as Judge Chessler noted in a footnote in his opinion, the litigation privilege may apply to the other state law claims as well to the extent that they are based on statements rather than conduct. But it is certainly true that under New Jersey law, and in particular under the Appellate Division's decision in Viviano, that there is this distinction. The litigation privilege does not apply to conduct. And so if plaintiffs brought a truly conduct-based claim under state law, the litigation privilege would not apply. I would no agree with your colleague's argument about this quotation claim. Because then that gets, if you're right, that gets rid of the conduct. Well, I think the fraudulent concealment claim, interestingly, in this case, is based at least in part on statements. Because if you read that claim, it relies on- Well, you have that. I understand why you're doing it. And it's a wonderful strategy for argument. But let's forget about trying to put a tether between the statement and the conduct. Just focus on the statements. I just focus on the conduct for a second. And look at that. If they survive a pleading challenge, and if Judge Chessler was wrong on saying that they didn't sufficiently plead the fraudulent concealment, you're conceding, I think, that the litigation privilege would not bar that claim. That claim was still- Well, there would be an open issue, I suppose, for Judge Chessler to resolve on remand as to whether this claim, because it is based at least in part on statements, is precluded- You put the rep at back and ahead again. Well, I'm only putting the rabbit back in the hat because this was an issue that Judge Chessler, by his own recognition, did not resolve. Namely, the extent to which the litigation privilege would bar the state law claim other than the fraud claims. And he didn't resolve it precisely- That would be a matter of law for us to decide, wouldn't it? Well, I think it would be better, frankly, for that to be decided in the first instance by the district court simply because it really turns on- Why is that? Why? Why? Simply because it involves an assessment of the nature of the underlying claims

. staff was already gotten into a lot of the issues that you wanted to cover. It has your honors. So with the court sleeve, I think what I was saying is that as he said, you know, we bought this problem. They took over, I guess, angle hard is that. You know, we bought the farm. In your case, your client is part of the farm. Yes, that is certainly correct. And so I think what I'd propose to do today with the court's leave is very briefly to address the anti-injunction act and article three issues because I think we would acknowledge that those issues are not dispositive of the entirety of the case. They dispose of only a portion of the case, the portion relating to injunctive and dreadful. Where do you go back? Are you saying that when it goes back for these other cases, when you say it's not dispositive of the entire case? I assume you're talking about all those other specimens cases sitting up there. Well, I'm talking about this case, the case that the court has before it because the plaintiffs have sought some other types of relief. And so the court would need to address the validity of plaintiffs claims under state law. And so I think with the court's, which state? Well, New Jersey law, because that is, which law would New Jersey look to? Well, and why don't I turn to that issue? And I do want to say just a couple of words about the anti-injunction act because there are a couple of issues specific to my client, my clients that have been addressed today. But on this question of choice of law, it is certainly true, as Mr. ASAF said, that this case has been litigated on the assumption that New Jersey law applies. And I do think that the better view is that choice of law can be waived, which is to say that if the party's litigate the case- Certainly, have the circuits lined up with the 5, 6, and 7th go your way. Possibly the second, I'm not so sure. Yes, and there is some authority from this court as you acknowledge, and I would say, we are all in a place. This court is all over the place. Well, that is true, but I tell it to my right, but there is substantial recent authority for the proposition that when parties do not raise conflicts of law, the court can apply the law of the forum state. Now, of course, choice of law is, ultimately- Ultimately, you'd have to make is that, nearly by being in bank, impliedly overruled the 1944 case and the 1958 case in Parkway, Bigger. Yes, and I would just say this. The one thing that I would cite to this court is the second restatement on conflict section 136, comment H, which I think stands for the proposition that when no party has raised choice of law, a court may apply the law of the forum state. And after all, you look to New Jersey law when deciding this question of conflicts of laws, because New Jersey is the forum state and as Judge Amber pointed out, New Jersey is a second restatement state. But I do think it's important to kind of understand the backdrop of this case, which I think underscores why it makes sense to apply New Jersey law here. The plaintiffs brought these state law claims and they proceeded under New Jersey law. And obviously, when we moved to dismiss, we asserted the litigation privilege under New Jersey law. At that point, the plaintiffs made no effort to rely on the law of other jurisdictions. I suspect in part, precisely because plaintiffs wanted to maintain their ability to proceed on a class-wide basis. And so Judge Chessler decided this issue as a matter of New Jersey law. Now, I think critically, before this court, the plaintiffs also stopped short of asserting that Ohio law or the law of any other jurisdiction applies. The plaintiffs in a footnote, seven of their brief at page 23, simply saying, I'm quoting, have the district court conducted a choice of law analysis and determined Ohio law to apply? There's no question that defendants would not be permitted to avail themselves of Ohio's legal argument. And you're only argument is that they waived it. Well, that is correct, both before the district court and before this court. And we certainly think that choice of law can be waived and that that is the better view as reflected in that provision of the second restatement, which I cited. I would note parenthetically that we dispute the proposition that under Ohio law, it is clear that the litigation, which would not apply to fraud points, which would support you, which is a state law, not a Supreme Court case, and then you have to know the district of Ohio case and Kramer, which seems to go the other way, but it's a district court. Yes, but I think that the more critical point is that the plaintiffs here really are litigating this on the assumption that New Jersey law applies. And at least above the line in their brief, they simply take issue with our characterization of New Jersey's expansive litigation privilege. And since we're on the subject, why don't I just go to that point very briefly, a judge quantize and address some of your questions with regard to New Jersey's litigation privilege? I think with respect that it is quite clear that under New Jersey law, the litigation privilege applies beyond its sort of traditional common law. It applies to communications does it not? You can't apply to conduct. Well, that is correct. And that is why we are invoking the litigation privilege as perclusive of the entirety only of the fraud claim. And as Judge Chessler noted in a footnote in his opinion, the litigation privilege may apply to the other state law claims as well to the extent that they are based on statements rather than conduct. But it is certainly true that under New Jersey law, and in particular under the Appellate Division's decision in Viviano, that there is this distinction. The litigation privilege does not apply to conduct. And so if plaintiffs brought a truly conduct-based claim under state law, the litigation privilege would not apply. I would no agree with your colleague's argument about this quotation claim. Because then that gets, if you're right, that gets rid of the conduct. Well, I think the fraudulent concealment claim, interestingly, in this case, is based at least in part on statements. Because if you read that claim, it relies on- Well, you have that. I understand why you're doing it. And it's a wonderful strategy for argument. But let's forget about trying to put a tether between the statement and the conduct. Just focus on the statements. I just focus on the conduct for a second. And look at that. If they survive a pleading challenge, and if Judge Chessler was wrong on saying that they didn't sufficiently plead the fraudulent concealment, you're conceding, I think, that the litigation privilege would not bar that claim. That claim was still- Well, there would be an open issue, I suppose, for Judge Chessler to resolve on remand as to whether this claim, because it is based at least in part on statements, is precluded- You put the rep at back and ahead again. Well, I'm only putting the rabbit back in the hat because this was an issue that Judge Chessler, by his own recognition, did not resolve. Namely, the extent to which the litigation privilege would bar the state law claim other than the fraud claims. And he didn't resolve it precisely- That would be a matter of law for us to decide, wouldn't it? Well, I think it would be better, frankly, for that to be decided in the first instance by the district court simply because it really turns on- Why is that? Why? Why? Simply because it involves an assessment of the nature of the underlying claims. And again- It's a purely legal question. Well, its application of law to the allegations in this case, and it would require a determination to the extent to which those allegations rely on statements. So this, we certainly could- I'm not going to get you as a knowing answer if you have a- The claim with respect to Hamstock is that he did an act of sequestering and putting away evidence that was inculpatory. That's- There's no communication whatsoever. That's content. Right, and I'm not- Well, look, let me step back and just say that- I'm not disputing the proposition that you could plead a fraudulent concealment claim in the abstract that was based truly on conduct. My submission is simply that when you look at the fraudulent concealment claim that is pleaded here, it turns almost centrally on statements that were made to the extent that- alleged statements that were made to the extent that there is no evidence that the products contain asbestos. And obviously- That's that's the thought of the claim as opposed to the fraudulent concealment claim. It's actually part of the fraudulent concealment claim somewhat counter- And it made it both. Yeah, and so this is just an issue that would involve sorting out what the allegations are and applying the litigation privilege. And that is why we are not arguing before this court affirmatively that this court could affirm that dismissal of all of the state law claims in their entirety based on the litigation privilege. The only claim that unambiguously would fall under the litigation privilege is the straight-up fraud claim, which is obviously a purely misstatement- Basque claim. And- Sort of a disciplinary proceeding. Is there any remedy that could be had if your client has done the things that are alleged of it? Courts that have extended the litigation privilege to fraud clients, and there are courts outside New Jersey that have done so have actually relied on the potential availability of disciplinary proceedings as a reason for doing so because after all that remains available- Outside of disciplinary proceedings, is there anything else? Well, that is- You know, I think the principal remedy for conduct that is covered by the litigation- Is there a question you might get an answer? Sorry. I asked him to try asking the question the third time and maybe you'd get an answer. Well, I apologize. Is there anything else? Is there anything else? I think that that is the primary available remedy. I suppose- This would mean you can have something other than primary. The only other- Well, there is one other potential remedy, but I don't know that it would apply in this context, and that is a claim from malicious prosecution, which has been extended to civil claims as well as criminal claims. There is obviously a very high bar for malicious prosecution claims precisely out of concern about the potential- A harassing use of that cause of action, and so of course you have to show lack of probable cause and the other elements of malicious prosecution. And New Jersey courts have carved out malicious prosecution claims as sui generous. But what New Jersey courts- And I do want to- You don't think as a matter of policy that such a role that would permit the making of fraudulent statements in the course of litigation would encourage lawyers to make such- Well, keep in mind Judge- Dove or misleading statements- Keep in mind Judge Goent is that the litigation privilege originally arose as a matter of common law, as a privilege that applied to defamation claims, which after all is a species of intentional tort. And yet defamatory statements made in litigation have always been protected. And I think those courts that have clearly extended the litigation privilege to fraud have done so, I think precisely, because there really isn't a lot of- I don't know, I don't know. I don't know. I'm too finished right now to say, but when you get to the end of your answer, put an answer in there, okay? Well, I'm waiting to hear a yes or no in response to- I think that there are good policy reasons, so yes, there are good policy reasons to extend the litigation privilege to fraud kinds. And when you look at the New Jersey- and I think that the New Jersey cases on this issue really do make clear that the litigation privilege applies expansively. And as my friend, this for ASAP, pointed out, although the New Jersey Supreme Court has not specifically applied the litigation privilege to fraud claims, in loigment and in the prior decision in Hawkins, the New Jersey Supreme Court made clear that the litigation privilege really applies without regard to the underlying type of cause of action. And of course, when you look at the elements of the litigation privilege, they don't take the underlying type of cause of action into account either. And as Mr. ASAP pointed out, there are numerous cases under New Jersey law, not from the Supreme Court, but from lower courts or from federal courts applying New Jersey law, that have applied the litigation privilege to fraud claims. And I think with respect that the Rubberton cases really on point here, that was a case involving allegedly fraudulent statements that were made to induce a settlement, and yet the Appellate Division applied the litigation privilege to the lawyer's conduct in that case. And so I think with respect, that's probably the best example of an actual case where the New Jersey courts have applied the litigation privilege to fraud claims. Now, I want to say a word about fraudulent concealment because to the extent that a fraudulent concealment claim could survive the litigation privilege here, we do think that there is really a fundamental pleading defect with plaintiffs' claims. And that really relates to— So, we talked about that with Mr. ASAP. Well, I want to just add two quick points on that, if I may. And the first is really that the plaintiffs— Just Mr. But you wouldn't answer a question if we can't get to it, keep your answers short. Well, I apologize that there is a lot— But we didn't beat that horse into the— There's a lot to say, but I want to say just— Well, let me just say one quick thing on this point because I realize that I'm press-bassing on the court's time. The plaintiffs here have failed to alleged facts indicating that they would have obtained a better result, but for the alleged— Well, you know what Mr. ASAP said. Yes, and I want to point the court to the complaint on this because I think it's very important that the court review the specific allegations on the fraudulent concealment claim. And those allegations can be found starting on page 193 of the Appendix and running the page 201. In those allegations, I think that the most that can be said about those allegations is that there is an allegation that the plaintiffs resolve their claims for, quote, nominal or token consideration instead of full, fair, and complete compensation. But there really aren't any affirmative allegations that the plaintiffs would have obtained a better result. I think in part that is because of the difficulties of causation with regard to these types of claims that this court is well aware of and that Mr. ASAP reference. But I think in part that is also because of the somewhat unique way in which asbestos claims were resolved. I think this goes to the question of settlements. Paintiffs alleged correctly so, I think, that settlements in these asbestos cases were aggregate settlements. Now, what that means is that you had a large group of defences. But leave me—we know what, I hope you get settlement means. Yes. We understand your point. We want to think of brief break and then go here from Mr. Tuenis. Okay, great. Can I just say one? No. All right, excellent. Well, I'm happy to answer your question

. And again- It's a purely legal question. Well, its application of law to the allegations in this case, and it would require a determination to the extent to which those allegations rely on statements. So this, we certainly could- I'm not going to get you as a knowing answer if you have a- The claim with respect to Hamstock is that he did an act of sequestering and putting away evidence that was inculpatory. That's- There's no communication whatsoever. That's content. Right, and I'm not- Well, look, let me step back and just say that- I'm not disputing the proposition that you could plead a fraudulent concealment claim in the abstract that was based truly on conduct. My submission is simply that when you look at the fraudulent concealment claim that is pleaded here, it turns almost centrally on statements that were made to the extent that- alleged statements that were made to the extent that there is no evidence that the products contain asbestos. And obviously- That's that's the thought of the claim as opposed to the fraudulent concealment claim. It's actually part of the fraudulent concealment claim somewhat counter- And it made it both. Yeah, and so this is just an issue that would involve sorting out what the allegations are and applying the litigation privilege. And that is why we are not arguing before this court affirmatively that this court could affirm that dismissal of all of the state law claims in their entirety based on the litigation privilege. The only claim that unambiguously would fall under the litigation privilege is the straight-up fraud claim, which is obviously a purely misstatement- Basque claim. And- Sort of a disciplinary proceeding. Is there any remedy that could be had if your client has done the things that are alleged of it? Courts that have extended the litigation privilege to fraud clients, and there are courts outside New Jersey that have done so have actually relied on the potential availability of disciplinary proceedings as a reason for doing so because after all that remains available- Outside of disciplinary proceedings, is there anything else? Well, that is- You know, I think the principal remedy for conduct that is covered by the litigation- Is there a question you might get an answer? Sorry. I asked him to try asking the question the third time and maybe you'd get an answer. Well, I apologize. Is there anything else? Is there anything else? I think that that is the primary available remedy. I suppose- This would mean you can have something other than primary. The only other- Well, there is one other potential remedy, but I don't know that it would apply in this context, and that is a claim from malicious prosecution, which has been extended to civil claims as well as criminal claims. There is obviously a very high bar for malicious prosecution claims precisely out of concern about the potential- A harassing use of that cause of action, and so of course you have to show lack of probable cause and the other elements of malicious prosecution. And New Jersey courts have carved out malicious prosecution claims as sui generous. But what New Jersey courts- And I do want to- You don't think as a matter of policy that such a role that would permit the making of fraudulent statements in the course of litigation would encourage lawyers to make such- Well, keep in mind Judge- Dove or misleading statements- Keep in mind Judge Goent is that the litigation privilege originally arose as a matter of common law, as a privilege that applied to defamation claims, which after all is a species of intentional tort. And yet defamatory statements made in litigation have always been protected. And I think those courts that have clearly extended the litigation privilege to fraud have done so, I think precisely, because there really isn't a lot of- I don't know, I don't know. I don't know. I'm too finished right now to say, but when you get to the end of your answer, put an answer in there, okay? Well, I'm waiting to hear a yes or no in response to- I think that there are good policy reasons, so yes, there are good policy reasons to extend the litigation privilege to fraud kinds. And when you look at the New Jersey- and I think that the New Jersey cases on this issue really do make clear that the litigation privilege applies expansively. And as my friend, this for ASAP, pointed out, although the New Jersey Supreme Court has not specifically applied the litigation privilege to fraud claims, in loigment and in the prior decision in Hawkins, the New Jersey Supreme Court made clear that the litigation privilege really applies without regard to the underlying type of cause of action. And of course, when you look at the elements of the litigation privilege, they don't take the underlying type of cause of action into account either. And as Mr. ASAP pointed out, there are numerous cases under New Jersey law, not from the Supreme Court, but from lower courts or from federal courts applying New Jersey law, that have applied the litigation privilege to fraud claims. And I think with respect that the Rubberton cases really on point here, that was a case involving allegedly fraudulent statements that were made to induce a settlement, and yet the Appellate Division applied the litigation privilege to the lawyer's conduct in that case. And so I think with respect, that's probably the best example of an actual case where the New Jersey courts have applied the litigation privilege to fraud claims. Now, I want to say a word about fraudulent concealment because to the extent that a fraudulent concealment claim could survive the litigation privilege here, we do think that there is really a fundamental pleading defect with plaintiffs' claims. And that really relates to— So, we talked about that with Mr. ASAP. Well, I want to just add two quick points on that, if I may. And the first is really that the plaintiffs— Just Mr. But you wouldn't answer a question if we can't get to it, keep your answers short. Well, I apologize that there is a lot— But we didn't beat that horse into the— There's a lot to say, but I want to say just— Well, let me just say one quick thing on this point because I realize that I'm press-bassing on the court's time. The plaintiffs here have failed to alleged facts indicating that they would have obtained a better result, but for the alleged— Well, you know what Mr. ASAP said. Yes, and I want to point the court to the complaint on this because I think it's very important that the court review the specific allegations on the fraudulent concealment claim. And those allegations can be found starting on page 193 of the Appendix and running the page 201. In those allegations, I think that the most that can be said about those allegations is that there is an allegation that the plaintiffs resolve their claims for, quote, nominal or token consideration instead of full, fair, and complete compensation. But there really aren't any affirmative allegations that the plaintiffs would have obtained a better result. I think in part that is because of the difficulties of causation with regard to these types of claims that this court is well aware of and that Mr. ASAP reference. But I think in part that is also because of the somewhat unique way in which asbestos claims were resolved. I think this goes to the question of settlements. Paintiffs alleged correctly so, I think, that settlements in these asbestos cases were aggregate settlements. Now, what that means is that you had a large group of defences. But leave me—we know what, I hope you get settlement means. Yes. We understand your point. We want to think of brief break and then go here from Mr. Tuenis. Okay, great. Can I just say one? No. All right, excellent. Well, I'm happy to answer your question. Even if you won't answer ours. I'm happy to rest on my briefs on the Anti-Enjunction Act and Article. Thank you. The Council does the meeting. I have a thank-for review. Where is now in session? Thank you. We're now, I think, Mr. Tuenis. Thank you. I know we're together. Thank you, Your Honor. Thank you. Erick Tuenis of Greenvam Rose Smith and Davis on behalf of Defendant, Appellee, Thomas Halkett. I think that the brief exchange that Judge Ambrose had— I think that's maybe because it's starting there. What's that? Maybe because it's starting—the exchange that Judge Ambrose had. Why are you in this position? Why are you here? Beats a heck out of it. I've been trying to persuade Plaintiffs Council for the longest time to cut my client lose. If I can't come up with a good reason and appropriately you ask Plaintiffs Council to provide a reason and instead of providing a reason, I think it was pretty clear that Plaintiffs Council really didn't even know who my client was. And I say that not to embarrass Council, but to point out that it underscores the completing difference that Plaintiffs have had towards my client throughout this litigation, notwithstanding the fact that they have refused to voluntary dissim from the case. This Mr. Pollock said that your client was involved in collusion with others to destroy evidence. Well, that's an allegation. I understand that's the allegation, but I think that Mr. Pollock's version of the allegations is somewhat informed by the misapprehension that Mr. Halkit was working for Engelhardt and BASF throughout the litigation. And in fact, that was the allegation that was initially made in the original complaint against Mr. Halkit. But we just said the pleading stage. I'm sorry? We're just at the pleading stage right now. No, but I'm saying as the initial pleading stage, the allegation was that Mr. Halkit was an employee of Engelhardt during the relevant time period. And we had to point out, in fact, it's in the record, that Mr. Halkit separated from the company in 1986, years before the plaintiffs even filed their losses. So essentially, the upshot of the claims against Mr. Halkit or that he was involved in a and document retention plan, which did not affect any especially litigation during the time that he was with the company. And in fact, presided over one especially litigation, the Westfield litigation, or which admittedly the so-called inculpatory evidence was presented to the plaintiff. So the only way that the plaintiff even gets to Mr. Halkit and tries to bring him into all the other allegations against the remaining defendants is that somehow he can be imputed with the conduct of the other defendants regardless of how long I'm sorry. In the booth they were saying he was at the Hempstock deposition and arguably gave rise to some kind of He was. And recall, that was his deposition in which Hempstock acknowledged the possibility that there was some kind of a substance or a substance like substance in the town. So far from being an obstructive act, he was involved at a time when the company was fully forthcoming. It's only what happened later in litigation that was filed years after he left the company that it becomes the company's conduct becomes even arguably problematic. But that has nothing to do with him. It wasn't there. And I have to say that what I've referred to is a completing difference, Mr. Halkit, runs through not only the course of this litigation where notwithstanding the fact there was been a demonstration that he was only there in the company for a few years, 28 years ago to be exact. But also throughout the state litigation as well. Never has there been a suggestion that Mr. Halkit be named as a defendant in the underlying personal injury suits. He's never been subpoenaed to testify. And in fact, even after Pat Wano and in connection with the SAMHSA case, plaintiffs never subpoenaed my client to testify in what essentially is a proxy for this case. So it's clear that plaintiffs, Mr. Halkit, is an afterthought. And it may be that they're proceeding against him on the theory that of course nothing extra to take him along for the ride. But the cost to Mr. Halkit are obviously very significant. And leaving aside the conventional costs, he's a practicing attorney. And we all live on our reputations. And when people, prospective clients are making decisions as to whether to hire him in this day and age, the first thing they're going to do is they're going to Google his name. And among the things that are going to come up in the results is the fact that he's a defendant in a week-o suit. Now, you know, we can pour us what that, the applications are, of that are to, among us lawyers, but to a prospective client, there is a real threat of harm

. Even if you won't answer ours. I'm happy to rest on my briefs on the Anti-Enjunction Act and Article. Thank you. The Council does the meeting. I have a thank-for review. Where is now in session? Thank you. We're now, I think, Mr. Tuenis. Thank you. I know we're together. Thank you, Your Honor. Thank you. Erick Tuenis of Greenvam Rose Smith and Davis on behalf of Defendant, Appellee, Thomas Halkett. I think that the brief exchange that Judge Ambrose had— I think that's maybe because it's starting there. What's that? Maybe because it's starting—the exchange that Judge Ambrose had. Why are you in this position? Why are you here? Beats a heck out of it. I've been trying to persuade Plaintiffs Council for the longest time to cut my client lose. If I can't come up with a good reason and appropriately you ask Plaintiffs Council to provide a reason and instead of providing a reason, I think it was pretty clear that Plaintiffs Council really didn't even know who my client was. And I say that not to embarrass Council, but to point out that it underscores the completing difference that Plaintiffs have had towards my client throughout this litigation, notwithstanding the fact that they have refused to voluntary dissim from the case. This Mr. Pollock said that your client was involved in collusion with others to destroy evidence. Well, that's an allegation. I understand that's the allegation, but I think that Mr. Pollock's version of the allegations is somewhat informed by the misapprehension that Mr. Halkit was working for Engelhardt and BASF throughout the litigation. And in fact, that was the allegation that was initially made in the original complaint against Mr. Halkit. But we just said the pleading stage. I'm sorry? We're just at the pleading stage right now. No, but I'm saying as the initial pleading stage, the allegation was that Mr. Halkit was an employee of Engelhardt during the relevant time period. And we had to point out, in fact, it's in the record, that Mr. Halkit separated from the company in 1986, years before the plaintiffs even filed their losses. So essentially, the upshot of the claims against Mr. Halkit or that he was involved in a and document retention plan, which did not affect any especially litigation during the time that he was with the company. And in fact, presided over one especially litigation, the Westfield litigation, or which admittedly the so-called inculpatory evidence was presented to the plaintiff. So the only way that the plaintiff even gets to Mr. Halkit and tries to bring him into all the other allegations against the remaining defendants is that somehow he can be imputed with the conduct of the other defendants regardless of how long I'm sorry. In the booth they were saying he was at the Hempstock deposition and arguably gave rise to some kind of He was. And recall, that was his deposition in which Hempstock acknowledged the possibility that there was some kind of a substance or a substance like substance in the town. So far from being an obstructive act, he was involved at a time when the company was fully forthcoming. It's only what happened later in litigation that was filed years after he left the company that it becomes the company's conduct becomes even arguably problematic. But that has nothing to do with him. It wasn't there. And I have to say that what I've referred to is a completing difference, Mr. Halkit, runs through not only the course of this litigation where notwithstanding the fact there was been a demonstration that he was only there in the company for a few years, 28 years ago to be exact. But also throughout the state litigation as well. Never has there been a suggestion that Mr. Halkit be named as a defendant in the underlying personal injury suits. He's never been subpoenaed to testify. And in fact, even after Pat Wano and in connection with the SAMHSA case, plaintiffs never subpoenaed my client to testify in what essentially is a proxy for this case. So it's clear that plaintiffs, Mr. Halkit, is an afterthought. And it may be that they're proceeding against him on the theory that of course nothing extra to take him along for the ride. But the cost to Mr. Halkit are obviously very significant. And leaving aside the conventional costs, he's a practicing attorney. And we all live on our reputations. And when people, prospective clients are making decisions as to whether to hire him in this day and age, the first thing they're going to do is they're going to Google his name. And among the things that are going to come up in the results is the fact that he's a defendant in a week-o suit. Now, you know, we can pour us what that, the applications are, of that are to, among us lawyers, but to a prospective client, there is a real threat of harm. But I raised this argument not only because I think it's grossly unfair that he's being taken along for the ride, but it also underscores the fact that there's no real case or controversy in this matter. Specifically, plaintiffs have sought solely equitable relief against Mr. Halkit. No damages, no legal relief of any kind. And to the extent that they are seeking equitable relief that applies to him in any way, the effect that it's going to have on the interest of the parties, even if plaintiffs just sits at the court in this case, is problematic to be charitable? Because if he is enjoying from asserting issue-perclusion defenses or sexual limitations defense or cease mistating the composition of the S-B-S-F product, in what context does that can affect the parties unless there's an actual lawsuit filed in which he's a party or he's called on as a witness? Did you move for a dismissal for lack of subject matter? Your distinction asked to him. Did you attempt to move for subject matter dismissal? Well, for the hearing, there's no case of any controversy. Okay. I mean, technically, it has subject matter jurisdiction in the sense that you will have a diversity case, but I can be, you know, you can't spend 55 pages solely on just disability. Yes, I've made extensive motions, putting forward many of the same grounds for dismissal as my co-helleys. But what I think is distinctive about the just disability case, that my client is advancing here today, is the fact that there is no purpose in this lawsuit, because even if successful plaintiffs cannot show likelihood certainty that it's going to affect the interest of the parties in any way. It's completely contingent on the unlikely event that someday, some way, some plaintiff is going to strike them that he has some connection to a stated dismissal. Is it the contention in the complaint that he had something to do with it? Isn't the contention in the complaint that he had something to do with the destruction of evidence? Again, I don't tell you the sole allegations against him in the complaint, or that before he left, he engaged in a document retention plan, and that he was involved in the West fall case. That's it. There's no direct allegations. How was it claimed that he was involved in the West fall case? What was it? He was in House Council at that time, which explains the reason of why he was present at the deposition. So you're arguing that he's in this case because of a status as in House Council? Oh, absolutely. But his status as in House Council is connection to Engelhart ceased in 1986. Again, before any alleged misrepresentations were made in plaintiff's cases, before there was any production of documents, he clearly wasn't involved because those cases were filed after he left. So, you answered my question. Thank you. I thought Mr. Mr. Pondock and clarified that. So again, to me, it's a fairly straightforward argument. What effect ultimately is the outcome of this case going to have on the interest of the parties? And I suggest it's way hypothetical. It's beyond hypothetical. It's unlikely. If you have any other questions. Mr. Suman, come at great risk to the class. I'm going to give you five minutes to get into the anti-injunction act. Five minutes. And I'm sure that you'll be cognizant of the time that you will try your best to answer our questions. If you want to explain them, why not do answer? I will thank you and I will deviate from today's practice by actually obeying the red light. So thank you. Maybe you can deviate from today's practice by answering the questions. Well, I will do my best. Your order is I've done so far on the anti-injunction. Let me go directly to Judge Ambrose question about why Cahill can assert the anti-injunction act. Because I think you've heard already in broad terms why we think the anti-injunction act applies. I think that the critical point to understand here is that the plaintiffs are seeking an injunction that runs against all of the defendants. What's a little bit unusual here is that plaintiffs aren't seeking an injunction. As we was thrown around the other way to them, if they give it, how does that really affect Cahill? Right. And that's right. And as you pointed out, Cahill was obviously not a party to any of the prior underlying asbestosuits. The best of my knowledge, Cahill is not in fact a defendant in any other lawsuit other than this one on this set of allegations. And so the reason that the anti-injunction act is important to the Cahill defendants is because in the event there were subsequent state court lawsuits against Cahill, for instance, based on a fraud theory, we would want to be able to assert the percussive effects if any of the prior state court judgments. And to the extent that we would do so, we would obviously do so in the context of those state court proceedings. What the plaintiffs here are seeking to do is to essentially tie one hand behind our collective backs by preventing us from asserting certain defenses in that subsequent litigation in the event that it arises. And to the extent that the plaintiffs are invoking the so-called stranger exception to the anti-injunction act, that exception applies only where the party seeking the injunction was a stranger to the underlying state court proceedings, not a case as here where the very party seeking the injunction was a party to the prior state court proceedings and is now seeking to avoid the effects of those proceedings. And I would note parenthetically that we haven't had a lot of discussion this morning about Article 3, but Article 3 provides an independent basis for sustaining the district court's denial of injunctive and declaratory relief. Sorry? Yes. And under the principle of Calderon versus Ashmuss, namely that the relief that the plaintiffs are seeking here is relief that stops short of fully and conclusively resolving the underlying dispute between the parties. Now, I would note parenthetically on this issue just one further point, and that is that the plaintiffs through Mr. Pollock point to the allegation in the complaint that involves the maintenance of a trust containing the relevant underlying documents. I believe it's paragraph 16-H of the amended complaint. And I think that that is actually relief that would not raise an anti-injunction act problem, but would raise an Article 3 problem precisely because again, it is relief that stops short of fully and conclusively resolving the underlying controversy, the underlying controversy, obviously being the asbestos claims that the plaintiffs are seeking to pursue against the doubt. Well, then you have a situation with the court, you're arguing the court before the horse, that they're arguing, well, it's a catch-22 because without the trust, we can't proceed in these other matters that may be out there. And you're arguing without some kind of underlying case for controversy that uses the language of our Article 3, there's no jurisdiction in the Federal Court to set up a trust. Well, at the risk of mangaling your metaphor, Chief Judge McKee, I think all were arguing something. No problem

. But I raised this argument not only because I think it's grossly unfair that he's being taken along for the ride, but it also underscores the fact that there's no real case or controversy in this matter. Specifically, plaintiffs have sought solely equitable relief against Mr. Halkit. No damages, no legal relief of any kind. And to the extent that they are seeking equitable relief that applies to him in any way, the effect that it's going to have on the interest of the parties, even if plaintiffs just sits at the court in this case, is problematic to be charitable? Because if he is enjoying from asserting issue-perclusion defenses or sexual limitations defense or cease mistating the composition of the S-B-S-F product, in what context does that can affect the parties unless there's an actual lawsuit filed in which he's a party or he's called on as a witness? Did you move for a dismissal for lack of subject matter? Your distinction asked to him. Did you attempt to move for subject matter dismissal? Well, for the hearing, there's no case of any controversy. Okay. I mean, technically, it has subject matter jurisdiction in the sense that you will have a diversity case, but I can be, you know, you can't spend 55 pages solely on just disability. Yes, I've made extensive motions, putting forward many of the same grounds for dismissal as my co-helleys. But what I think is distinctive about the just disability case, that my client is advancing here today, is the fact that there is no purpose in this lawsuit, because even if successful plaintiffs cannot show likelihood certainty that it's going to affect the interest of the parties in any way. It's completely contingent on the unlikely event that someday, some way, some plaintiff is going to strike them that he has some connection to a stated dismissal. Is it the contention in the complaint that he had something to do with it? Isn't the contention in the complaint that he had something to do with the destruction of evidence? Again, I don't tell you the sole allegations against him in the complaint, or that before he left, he engaged in a document retention plan, and that he was involved in the West fall case. That's it. There's no direct allegations. How was it claimed that he was involved in the West fall case? What was it? He was in House Council at that time, which explains the reason of why he was present at the deposition. So you're arguing that he's in this case because of a status as in House Council? Oh, absolutely. But his status as in House Council is connection to Engelhart ceased in 1986. Again, before any alleged misrepresentations were made in plaintiff's cases, before there was any production of documents, he clearly wasn't involved because those cases were filed after he left. So, you answered my question. Thank you. I thought Mr. Mr. Pondock and clarified that. So again, to me, it's a fairly straightforward argument. What effect ultimately is the outcome of this case going to have on the interest of the parties? And I suggest it's way hypothetical. It's beyond hypothetical. It's unlikely. If you have any other questions. Mr. Suman, come at great risk to the class. I'm going to give you five minutes to get into the anti-injunction act. Five minutes. And I'm sure that you'll be cognizant of the time that you will try your best to answer our questions. If you want to explain them, why not do answer? I will thank you and I will deviate from today's practice by actually obeying the red light. So thank you. Maybe you can deviate from today's practice by answering the questions. Well, I will do my best. Your order is I've done so far on the anti-injunction. Let me go directly to Judge Ambrose question about why Cahill can assert the anti-injunction act. Because I think you've heard already in broad terms why we think the anti-injunction act applies. I think that the critical point to understand here is that the plaintiffs are seeking an injunction that runs against all of the defendants. What's a little bit unusual here is that plaintiffs aren't seeking an injunction. As we was thrown around the other way to them, if they give it, how does that really affect Cahill? Right. And that's right. And as you pointed out, Cahill was obviously not a party to any of the prior underlying asbestosuits. The best of my knowledge, Cahill is not in fact a defendant in any other lawsuit other than this one on this set of allegations. And so the reason that the anti-injunction act is important to the Cahill defendants is because in the event there were subsequent state court lawsuits against Cahill, for instance, based on a fraud theory, we would want to be able to assert the percussive effects if any of the prior state court judgments. And to the extent that we would do so, we would obviously do so in the context of those state court proceedings. What the plaintiffs here are seeking to do is to essentially tie one hand behind our collective backs by preventing us from asserting certain defenses in that subsequent litigation in the event that it arises. And to the extent that the plaintiffs are invoking the so-called stranger exception to the anti-injunction act, that exception applies only where the party seeking the injunction was a stranger to the underlying state court proceedings, not a case as here where the very party seeking the injunction was a party to the prior state court proceedings and is now seeking to avoid the effects of those proceedings. And I would note parenthetically that we haven't had a lot of discussion this morning about Article 3, but Article 3 provides an independent basis for sustaining the district court's denial of injunctive and declaratory relief. Sorry? Yes. And under the principle of Calderon versus Ashmuss, namely that the relief that the plaintiffs are seeking here is relief that stops short of fully and conclusively resolving the underlying dispute between the parties. Now, I would note parenthetically on this issue just one further point, and that is that the plaintiffs through Mr. Pollock point to the allegation in the complaint that involves the maintenance of a trust containing the relevant underlying documents. I believe it's paragraph 16-H of the amended complaint. And I think that that is actually relief that would not raise an anti-injunction act problem, but would raise an Article 3 problem precisely because again, it is relief that stops short of fully and conclusively resolving the underlying controversy, the underlying controversy, obviously being the asbestos claims that the plaintiffs are seeking to pursue against the doubt. Well, then you have a situation with the court, you're arguing the court before the horse, that they're arguing, well, it's a catch-22 because without the trust, we can't proceed in these other matters that may be out there. And you're arguing without some kind of underlying case for controversy that uses the language of our Article 3, there's no jurisdiction in the Federal Court to set up a trust. Well, at the risk of mangaling your metaphor, Chief Judge McKee, I think all were arguing something. No problem. They need to go back to the stable. They need to go back to the state courts in question to the extent that they want to reopen the judgments. And obviously, they remain free to go back to those courts in the event that they want to pursue claims against Kayhill as well. And to the extent that we were talking earlier about the defects in their pleading concerning fraudulent concealment and some of these other claims, those defects, I think, flowed directly from the fact that the plaintiffs here are seeking to proceed on a classified basis. So when you look at those paragraphs on fraudulent concealment that I pointed you to earlier and you kind of scratch your head and you wonder, well, why didn't they allege more about why they would have obtained a better result in settlement? You know, wouldn't it be easy for them to sew a ledge? I think the answer is they wanted to maintain their ability to proceed on a classified basis. And while it may be true that in other contexts, it would seem plausible to be able to allege, well, if we don't even know this information, we would have obtained a better result, the very unusual nature of asbestos litigation with aggregate settlements where you're getting just a single check in response to your claims underscores that it is not self-evident that if they had known that BASF products contained asbestos as plaintiffs undisputably new with regard to other defendants in the asbestos litigation that they would in fact have obtained a better result. And so all of this sort of relates to the fact that these are all consusants evident but it is intuitive. It is intuitive. I don't think that it is intuitive simply for the reason that you had these settlements even with defendants whose products reportedly did contain asbestos and there is no allegation that the settlements were somehow larger as a result of that fact, given that these were aggregate settlements and not settlements with individual defendants. Thank you, Your Honor. Well done. Perfectly timed. It's fine. Not too on there. If you can start with, I'd mention it too initially, the case and controversy issue. The one and only candidly, the part of your anti-enjunction dodged it or well, that don't mean that pejoratively but it's obviously a problem here. For the part that struck me as being on the most solid footing was looking at this not in terms of an injunction, including them for raising certain defenses, but looking at it in terms of getting an order that what happened here was fraud and I asked why is that not an article of feedback. I think I put it to you in terms of why is an adviser opinion and the issue just came up again. Let me go back to it. Why would that not be an adviser opinion? Because at that point, nothing would be pending. As I understand it, you would take that judgment if you were to get it and use that to assume not against the Jersey and Ohio plaintiffs here because then you're back into possibly the anti-enjunction act although I understand your argument that you're not because the state clerk can either agree with it or reject it. But clearly as to the other outstanding class action plaintiffs that may be out there for asbestos, you would use it against them. But we would be issuing a judgment, a current or a judgment if you will, and at times when there's no underlying case for controversy, wouldn't we? If the case has already been adjudicated, then under Atlantic, then obviously we are now telling that court to change its mind, that would violate the anti-enjunction act. I agree. But if the fraud claim has not been adjudicated, if the fraud claim, there are currently pending actions or hundreds of cases that one council currently said that are currently pending, why would this court not by the same point for at least those cases have the right to render a ruling and say yes, there is fraud, and at that point, the court would want to protect its judgment. It would not want to have another. Those cases that are out there to constitute a case in controversy before this court. Those cases are part of this action, though. Those cases, the class would encompass all of these cases, so it may not apply to everybody, but it would certainly apply to some. In short, it would apply to some of the actions, perhaps not all. What do you need is one to get past that. That's right. Can I answer real quickly? I know I did my red light just went on, but I just... You may have noticed that we haven't been really paying a great day of attention. I just don't understand my welcome before the court. With regards to Mr. Halcett. I believe councilman spoke. He has been deposed. He has been questioned. It is a confidential proceeding. Unfortunately, I am not allowed to disclose this court, the nature of the testimony. If he was questioned, point blank. So the statement that he was not questioned is simply untrue. The allegation is set forth in paragraph 41. Mr. Halcett isn't just some guy. He is the guy who was in charge of litigation at the ASS at the time that they were destroying. They were going through the great purge of records. He is the guy who oversaw. He was in charge of litigation at that point in time. The claim was that someone else was made that gave the order to sequester that evidence. That may be true, but the allegation is certainly this is a conspiracy, too. He has never disavowed the conspiracy, Doug Ambro, therefore since he's never come clean, the conspiracy is ongoing under that theory alone. I just want to say that Mr. Halcett, there's a reason he's there. Is he the most culpable figure? No, but he's certainly a relevant figure because he is the one who was involved at the point in time in charge of litigation, making decisions for BASF as part and parcel of the conspiracy to purge the records. There is no point. What you have so far, it sounds like he may have just been at the wrong place at the wrong time

. They need to go back to the stable. They need to go back to the state courts in question to the extent that they want to reopen the judgments. And obviously, they remain free to go back to those courts in the event that they want to pursue claims against Kayhill as well. And to the extent that we were talking earlier about the defects in their pleading concerning fraudulent concealment and some of these other claims, those defects, I think, flowed directly from the fact that the plaintiffs here are seeking to proceed on a classified basis. So when you look at those paragraphs on fraudulent concealment that I pointed you to earlier and you kind of scratch your head and you wonder, well, why didn't they allege more about why they would have obtained a better result in settlement? You know, wouldn't it be easy for them to sew a ledge? I think the answer is they wanted to maintain their ability to proceed on a classified basis. And while it may be true that in other contexts, it would seem plausible to be able to allege, well, if we don't even know this information, we would have obtained a better result, the very unusual nature of asbestos litigation with aggregate settlements where you're getting just a single check in response to your claims underscores that it is not self-evident that if they had known that BASF products contained asbestos as plaintiffs undisputably new with regard to other defendants in the asbestos litigation that they would in fact have obtained a better result. And so all of this sort of relates to the fact that these are all consusants evident but it is intuitive. It is intuitive. I don't think that it is intuitive simply for the reason that you had these settlements even with defendants whose products reportedly did contain asbestos and there is no allegation that the settlements were somehow larger as a result of that fact, given that these were aggregate settlements and not settlements with individual defendants. Thank you, Your Honor. Well done. Perfectly timed. It's fine. Not too on there. If you can start with, I'd mention it too initially, the case and controversy issue. The one and only candidly, the part of your anti-enjunction dodged it or well, that don't mean that pejoratively but it's obviously a problem here. For the part that struck me as being on the most solid footing was looking at this not in terms of an injunction, including them for raising certain defenses, but looking at it in terms of getting an order that what happened here was fraud and I asked why is that not an article of feedback. I think I put it to you in terms of why is an adviser opinion and the issue just came up again. Let me go back to it. Why would that not be an adviser opinion? Because at that point, nothing would be pending. As I understand it, you would take that judgment if you were to get it and use that to assume not against the Jersey and Ohio plaintiffs here because then you're back into possibly the anti-enjunction act although I understand your argument that you're not because the state clerk can either agree with it or reject it. But clearly as to the other outstanding class action plaintiffs that may be out there for asbestos, you would use it against them. But we would be issuing a judgment, a current or a judgment if you will, and at times when there's no underlying case for controversy, wouldn't we? If the case has already been adjudicated, then under Atlantic, then obviously we are now telling that court to change its mind, that would violate the anti-enjunction act. I agree. But if the fraud claim has not been adjudicated, if the fraud claim, there are currently pending actions or hundreds of cases that one council currently said that are currently pending, why would this court not by the same point for at least those cases have the right to render a ruling and say yes, there is fraud, and at that point, the court would want to protect its judgment. It would not want to have another. Those cases that are out there to constitute a case in controversy before this court. Those cases are part of this action, though. Those cases, the class would encompass all of these cases, so it may not apply to everybody, but it would certainly apply to some. In short, it would apply to some of the actions, perhaps not all. What do you need is one to get past that. That's right. Can I answer real quickly? I know I did my red light just went on, but I just... You may have noticed that we haven't been really paying a great day of attention. I just don't understand my welcome before the court. With regards to Mr. Halcett. I believe councilman spoke. He has been deposed. He has been questioned. It is a confidential proceeding. Unfortunately, I am not allowed to disclose this court, the nature of the testimony. If he was questioned, point blank. So the statement that he was not questioned is simply untrue. The allegation is set forth in paragraph 41. Mr. Halcett isn't just some guy. He is the guy who was in charge of litigation at the ASS at the time that they were destroying. They were going through the great purge of records. He is the guy who oversaw. He was in charge of litigation at that point in time. The claim was that someone else was made that gave the order to sequester that evidence. That may be true, but the allegation is certainly this is a conspiracy, too. He has never disavowed the conspiracy, Doug Ambro, therefore since he's never come clean, the conspiracy is ongoing under that theory alone. I just want to say that Mr. Halcett, there's a reason he's there. Is he the most culpable figure? No, but he's certainly a relevant figure because he is the one who was involved at the point in time in charge of litigation, making decisions for BASF as part and parcel of the conspiracy to purge the records. There is no point. What you have so far, it sounds like he may have just been at the wrong place at the wrong time. It could well be, but the fact is he was not a passive figure like a paralegal or secretary. He was a decision maker at the company, and the act was a wrongful act as we have a legend in paragraph 41. I just want to make one last point with regard to Lloydman, which we spent a great deal of time on, does it make a difference to the court? And this is an honest question. Does it make it, hopefully my other is more dishonest? The question is that I misspoke earlier. I believe I said that they said there's no evidence, there's no asbestos in our talc. That's not what they said. What they said is there is no evidence of asbestos in our talc. And the question is, is that a difference that makes a difference? No asbestos in our talc, as opposed to no evidence of asbestos in our talc. And I raised that point simply because in our business, we rely upon the representations of counsel all the time. We rely upon discovery, etc. And so to me, it raises a problem under Lloydman. Is it really meant to cover fraud? The question that Judge Fuente has read it really? But it's also meant to be a blanket cover for the fact that if I say there's no evidence of this, don't bother pursuing that discovery and rely upon it. That raises to me a potentially different problem. Lastly, with regard to our... In any case, you're saying there's a protocienter as the both of them. Correct. I think that's absolutely right. And I'll close on this point, of course, unless you've been very patient as a tribunal. I appreciate it. The last point I would raise is I respectfully disagree that we didn't spell out in volume. I look at Williams at paragraph 19 and I look with regard to... I said his family name, Cherenick at paragraph 34. In both of those, we said in short, and we have the attachments going to the record that they dismissed those claims cheaply because they didn't get the truth. And apparently council wants us to go farther and say, and I would have gotten a buck 50. I would have gotten 200. The problem is, it's... Since she... If you destroy the evidence and you keep it in hiding from me, pretty tough for me to then go through and plead with more specificity and quantify exactly what I lost. But we've really meant to make pleading into a game. I think the purpose was to do exactly what the trial court supposed to do is serve as a gatekeeper. Keep bogus complaints out, hold us to our feet to the fire, make sure we properly plead facts. This is a 120-something page complaint in detail. As to these two people and as to the others, we did plead with all the particularity we can. To require more, we'd be saying you can never do it unless you actually look under the hood and get the destroyed evidence. Unless you have any further questions. I can draw a few questions. I just want to ask if council could prepare memoranda probably no more than 10 pages, maybe to submit by the end of next week. 10 pages, double space, I should say. Can a choice of law analysis be waived? And what would be, if it cannot be, what would be New Jersey's choice of law with respect to the litigation privilege issue? Your honor will be done. And you don't have to do that. You know, I'm really kidding. I said next to a third grade. It was always trying to get out of homework. As I say, it sounds really just done good. Anyway, those two, and then I'll see you on mission training. Okay, great. Yeah, we would like to get a transcript of this and you can see Miss Ayala about how, that's not Miss Ayala. Eric Siwan. You see how quiet about how that would be, would be paid for. You're right. Thank you for your courage using your patience. Thank you. Very difficult

. Obviously, very, was all important and probably complicated, more complicated than most. And council were very good. It's a pleasure to have a case like this argued by such competent attorneys because it makes our job easier. Even though I gave you a very difficult time to say, my model, your name, I'm on the list. I won't get it right by saying it, but but council presented very excellent argument, which would be helpful. So thank you, Your Honor