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Case number 22-7171, a state of Yale found by Russell Ellis, Administrator, et al, at balance, versus Heidemann, Noodleman, and Kaelig, D.C., et al.

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Mr. Tolchin for the balance, Mr. Waters for the appellees.

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Mr. Tolchin, good morning.

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Good morning, Your Honor.

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Whenever you're ready.

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May I please the court?

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I don't know if I'm going to be able to

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do such a fine job of captivating the court for an hour and a half about mill, about mind milling sites.

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But I think that our case is a little more succinct.

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Look, it boils down to Judge Lamberth created a standard of foreseeability.

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that did exactly what all the cases and all the versions of the restatement say not to do, that the foreseeability that we talk about with proximate cause is not that somebody did or should have been expected to predict

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exactly what course of events might transpire and foresee exactly the details of everything that might flow from any particular negligent action.

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The word for stability is a logical construct.

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That means one thing logically flows from the other and is not so very remote or diffusely related that it's not fair to link one to the other.

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and by creating... It's a question of degree, right?

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I mean, you don't have to foresee the exact sequence of events that such and such assets would be located in such and such bank, which would lead to such and such settlement.

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But on the other hand, at some point, everything becomes foreseeable if you just zoom out and say, if you're negligent, someone might hurt.

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So how do we pick the right level of generality at which to assess forcibility?

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That's correct, Your Honor.

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And I think that the terminology shift that the restatement third employs referring to it as the arm within the risk means, look, if I fail to, if I'm a lawyer and I take a case and I fail to prosecute it diligently and I don't get a judgment timely, then when somebody claims that the damage suffered was I wasn't able to enforce my judgment,

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That's, that's the harm that's within the risk of not pursuing a case diligently.

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Now, if that plaintiffs brother in law comes along and says if you had one case, then you would have been in a position to loan me money and I wouldn't have lost my house to mortgage foreclosure, and then we wouldn't have been living out in the street and I wouldn't gotten ammonia.

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That's getting far afield.

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But all that we said in the case.

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Can I ask a question?

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Is it always the case that getting the judgment sooner rather than later is going to be beneficial?

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What if, for example, there is a plaintiff who began the process of getting a judgment under the FSIA 10 years ago?

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In that plaintiff's case, maybe delay in getting the judgment would have helped them because it could put them within the window of being able to recover under the Peterson proceedings.

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No, I don't see how that could be around with the problem with the Peterson.

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Just to narrow this, it just seems to me that you're saying being able to get the judgment in time to capitalize on the Peterson proceedings, that was what should have been foreseeable.

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But it just seems to me that whenever you get your judgment, there'll be a different set of circumstances in play as to whether you can collect or not.

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And I'm just giving you an example of somebody who might have been benefited by a delay because that would put them within the window of Peterson.

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Peterson was a special event where all of a sudden there were assets when before there were none.

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And after.

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Peterson had a window that closed.

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If anyone who had a judgment prior to the close of that window, take a look at the Rubin plaintiffs were part of the original Camposano case.

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And they had their judgment back 10 years before Peterson.

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I don't think there's such a thing as being too early to an appointment.

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The problem is when you come too late.

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But what if you were early to the appointment and then you availed yourself of this fund, which precludes you from participating in Peterson?

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The fund did not exist.

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Because you never knew.

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But I'm just giving you a hypothetical.

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I mean, a lot of these things popped up.

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This is like a changing area of law.

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And so you avail yourself of something that precludes you from being in Peterson.

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Then you would have benefited from getting your judgment later so that you would have known about Peterson and participated.

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So I don't want to get too much into the weeds about Peterson and the fund.

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But to answer your specific question, Your Honor, because you've asked it, that fund, which was created in, I believe, December 2015, it was created in a universe that knew about Peterson.

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And there was a choice to be made to either file.

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You could file an application to the fund three ways.

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or actually two ways, you could forego filing for the fund and just get your money from Peterson, or you could file your application to the fund and forego Peterson, you actually didn't forego it, you assigned your Peterson benefits to the fund.

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Or you could do a conditional filing where you would wait to see which was gonna be better.

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So just to complete my questioning, so what if there's,

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suddenly a discovery of assets even bigger than the clear stream bucket of assets.

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What if there's one that's 10 times bigger that we learned about after Peterson Winterson closed?

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Then it would have been to your client's advantage to not participate in Peterson.

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Maybe your client would have a bigger pro rata share of this new bigger fund.

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People who got money from Peterson only satisfied a portion of their judgment.

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The unsatisfied portion of their judgment could be satisfied from other sources.

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And all of us who have- But maybe they're entitled to a smaller pro rata share because they satisfied some of it and your client will get a larger share of a larger fund.

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No, my client can only get- Is that possible?

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My client has the judgment that's a limited amount.

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And, you know, it may sound like a lot.

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Nobody's getting their full judgment.

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I'm just saying maybe your pro share of a later discovered large pile of assets is going to be bigger.

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But I won't care.

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That's just as foreseeable as Peterson was.

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I mean, maybe something's coming.

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But that wouldn't be damaging to me.

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I would be very happy that I got 10 percent of my judgment satisfied by Peterson and then I'll get 25 percent of my judgment satisfied by hypothetical

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But my hypothetical is, because you didn't participate in Peterson, you've got a larger pro rata share of the bigger assets.

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So that advantages you.

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But all that matters to me is how much hard cash I get.

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Precisely.

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And is it foreseeable that some other funds out there, that's going to give you a bigger share?

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It is foreseeable that there are other sources of Iranian assets out there.

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We know they're there.

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They're hidden.

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They're in shell companies.

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There's a building called 655th Avenue, which has been in litigation up and down the federal court system for the last 20 years.

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And who knows what else lurks out there, whether it's in the United States or in another country, or one day as part of some sort of rapprochement with Iran that might happen with another treaty like happened after the

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the original Iran hostage crisis in the beginning of the Reagan administration.

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But all of all of these things are to participate in anything like that, one needs to have a judgment.

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And I can't escape the fact in my mind that these defendants were retained in February 2004.

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They served their complaint in June 05.

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They made their first motion for default, which was

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forgive me for being harsh, but inept, in September 05, it was denied in June 06.

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They made another motion to take traditional notice of the Campuzano case, but they did not submit damages evidence in October 06, and that was denied in September 07.

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But had they made the right motion in the first place, they would have had their judgment back in 2006 or 2007.

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and it would have been exactly the same time as they got their judgment.

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These same lawyers representing the plaintiffs in the Bland case filed a case in 2006.

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They got their judgment and they participated for the Bland plaintiffs in the Peterson case.

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It's purely the

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Inept move after inept move.

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I have the feeling the case was assigned to an associate who didn't know what he was doing.

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Nobody was paying attention to this case and it flipped through the cracks so many times and the judgment was delayed by nine years.

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till they finally got anywhere.

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And nothing was disclosed to these clients.

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And meanwhile, the notion that you need to move with alacrity to get a judgment so that you can have a seat at the table when there's any funds to recover was ignored.

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I don't think it's remotely not foreseeable.

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I mean, I'm a plaintiff's lawyer.

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I live and breathe every day the fear that I did not move quickly enough and my client is going to lose out.

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I stay up at night worrying that an insurance company, I might settle a case and the insurance company might go into liquidation, then my client won't get his settlement.

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It's not unreasonable to think that if I don't get

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my judgment as quickly as I can, my client might lose out.

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And then to come now, in retrospect, as my brother on the other side argues, that this was all a strategy.

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It's a strategy?

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A strategy to submit half-baked papers and not even take a swing when they pitch the ball?

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That's a strategy?

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And to say that that's a matter of law, not even a jury question?

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and it should be decided based on a lawyer's memo of law without even an affidavit from a client saying, yes, I did this on purpose.

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I'm trying to explain why.

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Can you address our case Seed versus Westerman?

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This is 961 F third 1190.

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It seems to be the most on point case on foreseeability in the circuit.

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And in that case, an attorney gave his client bad information about the statute of limitations.

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with respect to a legal claim against one person, the client relied on that advice, missed out on a legal claim, not just against that person, but against another person that the attorney didn't know about.

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And we said that it wasn't foreseeable that that would have happened.

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Your Honor, I do have to apologize.

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I don't have that decision with me and I can't speak to the facts of it.

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See, I find that unusual, because it seems to be the most on point case.

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It's the DC Circuit opinion about foreseeability.

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And it's not discussed in your brief.

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In my brief, I was focused on the cases from the DC Court of Appeals.

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I understand that, but this is a legal malpractice claim.

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It's a DC Circuit case.

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Isn't that the most important piece of precedent to be citing to us?

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It might be, and I apologize, but I don't have the case in front of me.

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Okay.

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Mr. Fulsion.

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I don't think you addressed anywhere thus far.

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Judge Lambert's point at 25 and his opinion of 264 in the appendix.

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So the effect that that the Botvin's appears the Botvin's could not have done any better.

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Had they been included in the Peterson distribution, then they did

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by participating in the government fund?

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That is completely false.

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That is completely false.

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The amount of money that the Hopkins got from the fund was substantially less.

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than what they would have gotten from Peterson.

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And as I mentioned to Japan earlier, they did not need to make that choice.

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They could have submitted a conditional application to the fund.

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and waited to see whether their award under the fund was larger than what they would have gotten from Peterson.

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And then they would have been able to have whichever was the best option.

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In fact... The distribution was pro rata.

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Why wasn't the judge correct in extrapolating from the Woltz family?

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Because the Woltz family was not a pro rata settlement of the... I know the Woltz case very well.

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The will case was both has got their judgment very late and came into the.

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To the Peterson case, not as ordinary participants who had judgments at the same time as the settlement agreement was being negotiated.

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They tried to barrel in the motion to intervene and set it aside and upset the apple cart.

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And the participants in the Peterson case paid them.

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They agreed to pay them $1 million as a settlement.

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That was not a pro rata distribution.

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That was absolutely not a pro rata.

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Absolutely not a pro rata.

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So if Judge Lambert said it was, he's documentably wrong.

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I mean, I don't know that he said it, but that was implicit in his reasoning, of course.

[00:15:35] Speaker 03:
Yeah, no, it's absolutely wrong.

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I represented the Rubens in the case.

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So I was on one side, and I was

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previously counseled for the Wolfson side, I know the other side, that was not what happened.

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They got a flat settlement of $1 million because they had a very weak case and they came in late in the game and they were not part of the pro rata distribution.

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And yeah.

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Okay, Judge Pan, any other questions?

[00:16:14] Speaker 02:
No, thank you.

[00:16:16] Speaker 03:
Your honor, I apologize about the seed case.

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I'm wondering if I might be permitted to submit a 28-J letter just addressing that.

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Are you able to look at it while we hear from your friend on the other side?

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Unfortunately, I'm not.

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I'm talking to you on my cell phone.

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I did not bring my laptop.

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I expected to be there in person.

[00:16:40] Speaker 04:
I think today is limited to subsequent developments, not ones that I noticed.

[00:16:46] Speaker 03:
Well, it's that's why I asked.

[00:16:51] Speaker 05:
Well, if we want anything, we'll let you know.

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OK.

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OK.

[00:16:57] Speaker 05:
All right.

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We will and we'll give you some time.

[00:17:02] Speaker 05:
We'll hear from Mr. Waters now.

[00:17:05] Speaker 01:
Thank you, Your Honor.

[00:17:06] Speaker 01:
Good morning.

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May it please the court.

[00:17:08] Speaker 01:
uh, for the appellees, Heidemann, Noodleman, and Kaelin.

[00:17:12] Speaker 01:
I'm Jason Waters.

[00:17:14] Speaker 01:
Your honors, my clients handled the Botvin Foreign Sovereign Immunity Act case against Iran with diligence, skill, and care.

[00:17:21] Speaker 01:
They obtained a compensatory judgment, judgments in excess of $11.7 million, of which approximately $2.8 million has already been paid from the U.S.

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victims of state-sponsored terrorism.

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The plaintiffs in this case have alleged that certain delays or actions that were taken during the underlying representation prevented them from participating in this unique, privately negotiated, one of a kind, I believe, first of its kind sharing agreement among various judgment creditors against Iran.

[00:17:52] Speaker 01:
We believe Judge Lamberth correctly dismissed this case with prejudice and we respectfully request the court to affirm.

[00:17:59] Speaker 05:
We're on a motion to dismiss.

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So we have to assume factual allegations against you.

[00:18:09] Speaker 05:
And in that posture, it seems like a big stretch to say there was no negligence, which I just heard you say.

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I mean, this case was filed in 2005.

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And the default judgment didn't happen until 2013 and that's the easy part of cases like this, the hard part is enforcing that's what an eight year delay.

[00:18:40] Speaker 01:
Your honor, I don't think it's a delay, I think that's the course the litigation, it was a very complicated negation.

[00:18:47] Speaker 01:
there were dramatic changes in the underlying legal landscape.

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And to be clear, Judge Lambert's decision was actually quite specific with regard to the basis for granting our motion to dismiss, and it related to proximate causation.

[00:19:01] Speaker 01:
And granted, the court may be a lot more sensitive about granting a motion to dismiss on proximate causation in a tort claim, but there are numerous examples we cited in our brief, including the lead case of Piantrangelo

[00:19:16] Speaker 01:
that there's lambeth relied on that dismissed on proximate causation grounds at the 12b six level.

[00:19:23] Speaker 01:
In this particular circumstance, your honor, this is a very unique case with a very unique set of facts under a very unique statute and the complaint details this history quite extensively.

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and the record of this litigation that's before the court, probably before the court on a 12b6 motion, all demonstrates exactly what Judge Lambert found as a matter of law based on these pleadings.

[00:19:50] Speaker 01:
And the point is, I think he's really going towards, obviously he cites P. And Trangelo, but also the well-established authority in Twombly and Iqbal with regard to the court not being obligated to accept essentially speculative guesswork type of allegations.

[00:20:05] Speaker 01:
And this timeline is concrete with regard to certain aspects of this.

[00:20:11] Speaker 01:
And it establishes that the allegation in this complaint with regard to what the negligence was, even if you assume that it was negligence, which we don't concede, but even if you assume that it was negligence, the foreseeability of that negligence of having the consequence that is deleterious to the plaintiff's interests, right?

[00:20:34] Speaker 01:
or having this particular consequence is so legally impossible that it does not see the claim and because of the concretely established timeline cannot state a claim.

[00:20:49] Speaker 05:
Do you agree just as a matter of but for cause?

[00:20:55] Speaker 05:
Just assume that we think

[00:20:58] Speaker 05:
we have to accept negligence on a motion to dismiss.

[00:21:06] Speaker 05:
But for the assumed negligence, there would have been a judgment in time to allow this plaintiff to get into Peterson.

[00:21:22] Speaker 05:
Why is that not a plausible inference from the specific facts pleaded here?

[00:21:31] Speaker 01:
Because the standard for proximate causation in the District of Columbia in legal malpractice

[00:21:37] Speaker 01:
relates to decisions such as the Chase Company, the Seed Company case, the Judge Pan reference.

[00:21:43] Speaker 05:
With regard to the reasonable foreseeability of the type of- Okay, I'm just asking for now, I'm just asking about but for cause.

[00:21:55] Speaker 05:
You think we can't assume, we can't make a plausible inference at the pleading stage on at least that much?

[00:22:06] Speaker 01:
I don't believe you can make that plausible inference in this particular circumstance because of the very detailed and complicated legal, a changing framework that was happening at this time.

[00:22:19] Speaker 05:
And you lost a year just from the initial mistake of filing the notice of default with the court rather than the clerk.

[00:22:30] Speaker 05:
Take a year off this and they're within Peterson.

[00:22:34] Speaker 05:
You know, I'm not saying they'll win on the merits, but at a motion to dismiss stage, you can't make a plausible inference that.

[00:22:43] Speaker 05:
He pushed the clock back at least a year or two for all these mistakes.

[00:22:49] Speaker 01:
We're making a considerable assumption about the timeframe of the litigation and how quickly it would proceed.

[00:22:54] Speaker 01:
As your honor may be aware, and we demonstrated in our briefing with the appendix timeline, this case, my clients were actively representing these individuals in what we've called Botvin 1 for about seven and a half years.

[00:23:07] Speaker 01:
During that time, the case sent about five and a half years pending a decision on various applications for relief.

[00:23:14] Speaker 01:
So we're speculating, entirely speculating, and I think that was Judge Lambert's point,

[00:23:20] Speaker 01:
about whether certain things could have proceeded differently or faster.

[00:23:24] Speaker 01:
I think what's also speculative is that an earlier judgment would have been a better judgment or at least equal to the judgment that was ultimately received.

[00:23:32] Speaker 01:
So I don't think that we can make that assumption that but for what Mr. Tolson says is negligence, right?

[00:23:39] Speaker 01:
And we disagree, but for what he cites as being negligence necessarily would have resulted in an earlier judgment that would have put them into Peterson.

[00:23:48] Speaker 01:
I think the problem with this legally is that Mr. Tolkien's argument is looking at this entirely through the benefit of hindsight, right?

[00:23:57] Speaker 01:
We don't define legal malpractice that way.

[00:24:00] Speaker 01:
We don't look backwards from the harm and say, each decision you made could have been different if you had done something differently.

[00:24:08] Speaker 05:
Fair enough.

[00:24:09] Speaker 05:
So let me just shift from but for to proximate the foreseeability issue.

[00:24:18] Speaker 05:
Why isn't it, as I suggested to your friend, this seems to me like a level of generality problem.

[00:24:29] Speaker 05:
Why isn't it good enough on the plaintiff friendly standard, which generally treats foreseeability as a question of fact?

[00:24:42] Speaker 05:
Isn't it good enough just to think, you know, general foreseeability if you're,

[00:24:48] Speaker 05:
If you're suing a soft law defendant that's hiding assets all over the world, no better to get the judgment sooner than later, because who knows when you'll find something.

[00:25:04] Speaker 05:
Why isn't that specific enough?

[00:25:07] Speaker 01:
I have multiple responses to that, Judge, and bear with me, please.

[00:25:10] Speaker 01:
First, proximate cause must still be proximate.

[00:25:13] Speaker 01:
We can't look at it so broadly as to say that any

[00:25:16] Speaker 01:
potential factor or event is necessarily causally related because regardless of how distant or tenuous it is from the nexus between the event and what is cited as being the cause.

[00:25:29] Speaker 01:
In this case, even looking at this as broadly as we possibly can, we have to at least acknowledge this is a foreign sovereign immunity act case under the terrorism exception and the defendant is Iran.

[00:25:42] Speaker 01:
Iran does not defend these cases.

[00:25:44] Speaker 01:
It certainly shows up when its assets are being challenged for potential seizure, but it does not defend these cases.

[00:25:50] Speaker 01:
And Judge Lamberth gave an incredibly expansive decision in 2009 in Inri terrorism, where he was talking about specifically the general foreseeability of collecting a judgment against Iran.

[00:26:03] Speaker 01:
And his statements were remarkable.

[00:26:05] Speaker 01:
He contacted

[00:26:09] Speaker 01:
He commented that the prospects of recovery were extremely rare, that enforcing judgments was all but impossible, that the judgments were largely enforceable, that this dynamic created a grave travesty, that collecting judgments against Iran were virtually impossible, and that the terrorism exception itself had become an empty promise.

[00:26:33] Speaker 01:
This is a really, really important thing to remember in the context of the change that was going on between

[00:26:38] Speaker 01:
1605A7, and the Scipio-Poleo decision, and 1605A, and the very, very significant change in public policy that that reflected.

[00:26:50] Speaker 01:
because under 1605A7, the courts were required to consider choice of law issues, the existence and viability of causes of action under various states law.

[00:26:59] Speaker 01:
But 1605A or big A took that all away and changed this landscape in a way that the lawyers were trying to figure out how to address this in a way that was protective and defensive our client's interests.

[00:27:12] Speaker 01:
Judge Lambert voted, sorry.

[00:27:13] Speaker 04:
Notwithstanding all the difficulties that Lambert had previously laid out,

[00:27:20] Speaker 04:
your client accepted this case on a contingent basis.

[00:27:24] Speaker 04:
And it looks like it invested a substantial amount of time and money out of pocket for experts, but more important for all the time it took to litigate this.

[00:27:35] Speaker 04:
And so it must have of the view that there was enough of a chance ultimately of recovering something to take this gamble, to invest these resources on the hope that something would turn up.

[00:27:49] Speaker 04:
And of course, from time to time, some things do turn up.

[00:27:53] Speaker 04:
And under just knowing that and nothing more, it would seem that time is of the essence at every moment in this litigation and that the firm would be pursuing matters as expeditiously as possible.

[00:28:09] Speaker 01:
Fair enough?

[00:28:12] Speaker 01:
I don't necessarily agree with that statement and part of the reason is because the uniqueness of the FSIA litigation and that the there is our competing interest involved in this, particularly as relates the executives interest with regard to foreign policy concerns.

[00:28:28] Speaker 01:
or international relations concerns.

[00:28:30] Speaker 01:
That's what makes it so dicey.

[00:28:32] Speaker 01:
But makes it so unique.

[00:28:33] Speaker 01:
But the point is, our courts are charged with ensuring rule of law and the adherence to statutory language and our constitutional principles, even for a belligerent, bellicose, non-appearing defendant such as Iran.

[00:28:47] Speaker 01:
So in these circumstances, Your Honor, I believe the court, I believe Judge Urbina's view of this during the litigation was, better to get it right

[00:28:56] Speaker 01:
than necessarily to get it fast.

[00:28:58] Speaker 01:
And that, and I think my clients handled this in a way that was conservative and appropriate.

[00:29:03] Speaker 01:
And actually one of the things, one of the approaches that was recognized in Judge Lambert's decision with regard to how you handle this transition to 1605 large A. And that they did in fact pursue this as expeditiously as they could with the reasonable understanding with regard to their existing and foreseeable collection opportunities with respect to Iran.

[00:29:25] Speaker 01:
Now, of course, that has changed.

[00:29:27] Speaker 01:
As Judge Lamberth said, you have to foresee that Iran secretly and surreptitiously and illegally was holding two billion dollars of assets in the United States, which, by the way, that is minimal compared to the amount of judgments that existed at the time against Iran.

[00:29:43] Speaker 01:
And one of the important things that's really, really unique to this particular case is it's not just foreseeability that there's an opportunity to collect from Iran,

[00:29:52] Speaker 01:
It's that they would have an opportunity to collect from Iran in the sense that they would be able to participate in a privately negotiated settlement agreement with judgment creditors, with judgments that vastly exceeded the value of their own judgment and long proceeded even their filing.

[00:30:13] Speaker 04:
You're taking Judge Lambert's level of generality here, which is none.

[00:30:20] Speaker 04:
making it very specific.

[00:30:22] Speaker 04:
And of course people couldn't anticipate that.

[00:30:24] Speaker 04:
The whole point of the undertaking is something might turn up and you can't anticipate what it is or when it will be, only that something might turn up.

[00:30:34] Speaker 04:
That's all you can do.

[00:30:37] Speaker 02:
Isn't the foreseeability here, it would have to be not just that something would turn up, but that there would be a very limited window to collect against those assets.

[00:30:47] Speaker 02:
And that limited window was driven by this settlement agreement that these other plaintiffs reached, things that are unusual.

[00:30:55] Speaker 02:
I mean, if that was possible, assets turn up.

[00:30:58] Speaker 02:
But the fact that there was a really limited window in which you could participate in trying to attach them was driven by these other things that are more specific and strange.

[00:31:08] Speaker 01:
Again, I think we're speculating about the nature of the assets, the agreement of creditors with earlier priority about whether those are actually collectible, whether

[00:31:17] Speaker 01:
there's a variety of different factors that we'd have to speculate about.

[00:31:21] Speaker 01:
And again, during the course of the litigation, this litigation, the understanding was there were billions of dollars of judgments against Iran and extraordinarily limited assets against which to collect.

[00:31:34] Speaker 01:
So our clients sought to maximize the judgment potential of this particular award, made certain decisions when Congress enacted the law that were

[00:31:45] Speaker 01:
reasonable under the circumstances to protect the client's best interest to maximize their judgment.

[00:31:50] Speaker 01:
Their judgment will be enforceable for many years and can be re-domesticated.

[00:31:53] Speaker 01:
And I think one of the points that came out with Mr. Tolchin's argument, and I think one of your honest questions was, what's to say that there isn't another future asset that's going to be recoverable against which these clients could participate?

[00:32:07] Speaker 01:
what's to say that there won't be further distributions from the USVSST.

[00:32:12] Speaker 01:
All of this illustrates the speculative nature with regard to the collectibility of a judgment against Iran under these circumstances.

[00:32:21] Speaker 01:
And I think going to Judge Kotz's points and Judge Ginsburg's point, I think Judge Lambert looked at this very, very specifically because, and I think for good reason, what is claimed here is a very, very particular and unique harm.

[00:32:37] Speaker 01:
They didn't claim general inability to collect from other sources.

[00:32:44] Speaker 01:
The particular claim here is the Peterson sharing agreement and their calculation of the pro rata share of that.

[00:32:53] Speaker 01:
And even if you're looking at this even more broadly, just as an FSI climate gets to run, we believe that Judge Lambert's got the correct outcome and that dismissal was appropriate.

[00:33:03] Speaker 01:
I'm well over my time, unless there are any other questions, I'd gladly conclude my argument with you.

[00:33:08] Speaker 01:
request you to offer.

[00:33:09] Speaker 05:
Judge Pinkham.

[00:33:12] Speaker 05:
Judge Ginsburg.

[00:33:13] Speaker 04:
Well, thank you.

[00:33:14] Speaker 05:
Okay.

[00:33:15] Speaker 05:
Thank you, Mr. Waters.

[00:33:17] Speaker 05:
Mr. Tulchin.

[00:33:19] Speaker 03:
Thank you.

[00:33:19] Speaker 03:
I'll try to be quick.

[00:33:20] Speaker 03:
Of course we, just to start from the end, of course we alleged a particular claim.

[00:33:25] Speaker 03:
If we sue, say you didn't get my, you committed malpractice because you didn't get my judgment for me, then the natural defense would be, well, it didn't matter that you didn't get a judgment because there were no assets out there.

[00:33:38] Speaker 03:
It's the very fact that there were assets out there that we missed out on that gives rise to the ability to bring the matter home.

[00:33:49] Speaker 03:
Next, nobody should lose sight of the fact that one of the participants in the Peterson matter was the plaintiffs and Bland, who were represented by none other than our defendants.

[00:34:03] Speaker 03:
They knew about Bland.

[00:34:05] Speaker 03:
They knew about the pro-rating.

[00:34:07] Speaker 03:
They were part of that negotiated agreement and you can bet your britches that if they had another client like the

[00:34:18] Speaker 03:
who also had a judgment, they could not possibly negotiate participation in Peterson for one client and not the other without being under a deafening conflict of interest.

[00:34:31] Speaker 03:
So if they had a judgment, they would have been in, or at least I believe there's a- Why is there a conflict of interest?

[00:34:38] Speaker 03:
Bland only got a judgment earlier than- Bland only got their judgment earlier than the Botfins because for some reason,

[00:34:48] Speaker 03:
The Heidemann firm paid attention to it.

[00:34:52] Speaker 03:
The Bland case was not actually even filed until 2006.

[00:34:58] Speaker 03:
Our case was filed in 2005 and the Heidemanns were retained in 2004.

[00:35:04] Speaker 03:
Now the bland case had a lot more plaintiffs.

[00:35:07] Speaker 03:
So that's propped to me, to my cynical way of viewing the world, that explains why they paid more attention to it.

[00:35:13] Speaker 03:
They made more money from it.

[00:35:14] Speaker 03:
But that doesn't mean that it's okay to take your clients to Botvin's.

[00:35:18] Speaker 03:
Mrs. Botvin lost her 14 year old daughter.

[00:35:21] Speaker 03:
It does not mean you can take your case, take their case and not pay attention to it and let your other case that was started later get all the way to the end while you're still

[00:35:32] Speaker 03:
trying to get out of the starting gates on Botvin.

[00:35:36] Speaker 03:
The last thing I'll say, because I know my time is up or running out, is I managed to quickly, with a big disclaimer, take a look at Seed on my phone, which is hardly a proper way to do legal research.

[00:35:53] Speaker 03:
I think, first of all, Seed, yes, it is a DC Circuit case, but it cites the Devo case.

[00:35:59] Speaker 03:
It cites the DC versus Zuckerberg case, which were the DC Court of Appeals cases cited in my brief.

[00:36:08] Speaker 03:
And there's a big difference in Seed that there was a subsequent lawyer who came into the picture while there was still time to fix the problem.

[00:36:18] Speaker 03:
So that subsequent lawyer, I mean,

[00:36:22] Speaker 03:
But let's say the bobbins had changed council mid representation.

[00:36:28] Speaker 03:
And while there was still time for the new council to fix things, that's what happened in Seed.

[00:36:35] Speaker 03:
That's different from our case.

[00:36:38] Speaker 05:
Okay, thank you.

[00:36:39] Speaker 05:
Judge Pan, anything else?

[00:36:41] Speaker 03:
No, thank you.

[00:36:42] Speaker 05:
Judge Ginsburg?

[00:36:43] Speaker 04:
No, thank you very much.

[00:36:45] Speaker 05:
Okay, thank you, Mr. Tulchin.

[00:36:47] Speaker 05:
The case is submitted.