please the court good morning my name is michael shome and i'm proud to be here to represent susan newman thomas in her attempt to bring a class action based on state law on behalf of investors w defrauded by their investment advisor in the state of wisconsin who was a dual registrant of two of the defendants pelleas and was supervised by the other defend the district court erred in its conclusion and i'll refer to the sections of defining covered class as a say subsection one in subsection two because it's a long  series of numbers that sluice a uses in this definitional section but in subsection one the court of the court found that subsection one did not apply here that the fifty person threshold does not apply even though the class claim was alleged to be under fifty because that section only referred should have referred to named part is now that that first error was was clear that section  subsection one does not contain the word name pardons it refers to persons a single lawsuit and a fresh round of fifty persons upon whose representation damages sought your respect of specific claims of reliance where class claims of law and in fact predominate the court instead went to subsection two which basically uses very standard language from class claims and said that's really what applies here and therefore there is no threshold of fifty or less or more and therefore you fall squarely within subsection to the matter should be dismissed it had already been removed from state court and judge peterson refused to remand it back to the state court so that's a fundamental error that the court made first it in it imposed a term named persons on a statute where it wasn't present and also in doing so really you about the showman one way to another way to look at this is to say rather than congress was stuttering it was using  and that if you've got a class action with more than fifty prospective class members that would fall within both one and two if it's if it's and i don't think there's any dispute about that and in fact we also know in this case it wasn't in the complaint but we also know who these people are we have their names we did not put them in the complaint that was not an element of the pleading that we thought was necessary but we do have their names we know who these folks are well that isn't the right answer to simply bring the action in state court on behalf of forty eight my named people w of these it would if your honor it would have and actually that's the alternate relief for asking unfortunately judge peterson dismissed the case with prejudice and so we aren't free to refile this in state court  with forty eight or less or certainly less than fifty named persons we can do that and you can judge peterson if this court would remand with directions to dismiss without prejudice we would be able to do that i would like to add however that not only is it i don't believe logical to read into subsection one named persons where the word is not there i do think it if in fact is supreme makes such a support flows but we have the supreme court in three consecutive opinions the most recent being the cyan case where justice kagan for a unanimous court three times in her opinion  to refers to the definition of a covered class as a single lawsuit seeking damages on behalf of fifty persons this was started out in dab in two thousand and six with justice stevens and when just a stevens referred to that class he actually he had a footnote footnote number eight and in that footnote he had the complete section of covered class definitions yet he referred to the fifty as as the important threshold that was repeated by justice souter again for unanimous supreme court in the kurtzer case and most recently this year excuse me two thousand and eighteen justice kaga refer to it three times as the definition of what a covered class is that is a single lawsuit brought on behalf of fifty persons now understand that the argument that judge peterson thought and adopted and certainly what the argue is this is simply dicta and not something for any of the courts to take seriously but we know that's not true first of all the supreme court supposedly dicta can't be brushed aside by this court or any of the lower courts class action is a case is that one single lawsuit brought on behalf of fifty or more persons so we have this language repeated by the supreme court repeated by this court which certainly suggests that it makes sense that this is that independent basis and that if you are under the fifty percent judged easterbrook in the holts case i won't take my time to read that to you but in the holts case under state law so i think it would be if the court doesn't agree and i think the court should agree of course that this group of wisconsin investors suing essentially their investment advisor and broker dealers that case it certainly proceed in wisconsin under wisconsin state law and if there aren't councils or anybody other than ms nuland thomas who's prepared to go forward i don't know if they're prepared to go forward as class not as representatives not as a class but if you at this point you got a judgment against neal and thomas that's correct and nobody else that's correct that is correct so even if we  affirm presumably the other forty eight or however many there are could go forward presumably around or but again in a class form you would have to find another representative and then you would have  action you're going to be thrown out again if you do it as individual if you do it as is just collected claims multiple coyness the statute doesn't apply now does it seem arbitrary well maybe but well  the fifty if you're under the a pelleas conceded any three of their briefs that had we named the plaintiff that that members of the class even as a class and even making claims for misrepresentations  and omissions of a covered security we would have been able to proceed and judge peterson makes the same argument so it's not just in fact that we can't proceed as a class both the lower court and the a pelleas agree we could proceed in you gore please the court counsel my name is dana glor i represent appellee t d ameritrade and i'm arguing on behalf of all felonies one let me begin by correcting a mistake that counsel me just a moment ago if ellie's do not take the position or concede that if the class if the case were brought as a class on behalf of fifty or four fewer named be conquered fortune and t d ameritrade and i think it's also notable that ms neal in thomas does not allege for herself that she was referred to this investment advisor by wisconsin river bank so thomas individually has no claim against wisconsin of a bank the only way that she even made an allegation here was on a representative basis on behalf of a putative class there is no other individual who has ever been identified and frankly the first time we've ever heard that appellant has supposedly has names of other individuals who potentially could be in a position account agreements is that all claims must be arbitrated before the financial industry regulatory authority other than class actions which i presume is why plaintiffs brought this case as a class action to it is true that the first type of covered class action doesn't use the word me to say fifty or more named parties i do not think the court has to reach the interpretation of that aspect of the litigation act because it's absolutely clear that this particular case falls within the second category of covered class actions it's a class action but if the poor or inclined to reach that point logically it makes sense that you would have to name fewer than fifty persons in order to avoid the act if there are more than fifteen need parties named plaintiffs we know that the at the case the lawsuit is barred by the securit litigation uniform standards act if it's framed as a class action we know that it is barred it is only if fewer than fifty people are actually named however that we can know that it is not barred and if we look at the allegation at issue here you can see exactly why plaintiff alleges that paragraph ninety one of her class action complaint that quote while the exact number of class members cannot be determined yet upon information and belief the putative class consists of at least thirty five but no more than forty nine members that was her allegation this is exactly the kind of artful pleading that this court has held on multiple occasions and the supreme court has held on multiple occasions is unavailing and if her argument were to be accepted that that kind of information and belief lack of specificity could avoid litigation act then this court would be opening the door to a flood of claims where at least out of the gate players would allege upon information believe we think it's a small class the other point that i think is important to address is the issue of dismissal without prejudice there's no question at all that the class claims here and the federal claim were properly dismissed with prejudice  it's a quarter in arbitration or free to do so i think that's correct and if they pursued in court then the defendant in whatever claim that is would move to compel arbitration and it would go from there to the court that has to rule on that motion would rule on the motion and it would just go from there i think it could have been proper for the district court to dismiss ms neal in thomas individual state law claims without prejudice if she had sought that relief and if she had preserved that issue for appeal but she did not she did not preserve the issue of the status of the dismissal at all in fact in our motion in the district court we specifically argued that the dismissal should be with prejudice and we cited cases to that effect plaintiff did not even respond to that argument she took no issue with our argument in that regard instead she simply asked that the motion be denied and the case be remanded to state court so she did not raise that argument below and federal rule of appellate procedure twenty eight five requires an appellant to state in the appellant's brief a statement of the issues presented for review in this court she presented only one issue for review which was whether the court erred in finding that this case constituted a covered class action she did not present as an issue whether the dismissal should have been with prejudice frankly until page eight of her reply brief did you not think she has preserved that issue for appeal step we've addressed that without being raised before many times yes your honor you have i think it's important though to look at her argument on page eight of her reply brief she's not even asking the court that the dismissal of her indefensible claim be changed to without prejudice that she's really arguing that the dismissal of the class claims ought to be without prejudice and that she or perhaps counsel should be given the opportunity to join more named plaintiffs plaintiffs who she could represent in a class of fewer than fifty members so even now she's suggesting that this court convert t covered class action must be dismissed she's not arguing that any of the other parameters in the litigation act don't apply here so it's not a question of changing the factual allegations to add  omit factual allegations under the cases which we've cited in our brief baylen versus maryland which was an eleventh circuit case the brown vs kilometers case of this court the goldberg opinion of this court and the whole case of this court the class claims were properly dismissed with prejudice i do think conceptually it was possible had she raised it and preserve the issue that her individual state  properly have been dismissed without prejudice and she could have been allowed to try to proceed and we would have in fact moved to dismiss those claims on the basis of her failure to state a claim the district court denied that motion as moot because it dismissed all of the claims with prejudice but frankly that's why we moved to dismiss her individual claims because conceptually they could have been treated separately we do submit that the dismissal with prejudice was legally correct it was it was not presented to the district court that that plaintiffs even sought a dismissal without prejudice sheaffer close to a remedy if the court has no other questions will submit on the briefs thank you m had another minute of thank thank you i appreciate that i do i do want to get back to judge hamilton's question about it can we go back and get another class action based on state law if we have fifty persons in the class of less than fifty persons in the class i refer you both to judge peterson's decision because that's what he says but also i do refer you to page twenty three of the a pelleas brief and i hate to read from a brief but it's only a short piece the existing body of case law makes clear that if this case were brought on behalf of a group of fifty fewer than fifty named plaintiffs it would not be deemed a cover class action even if the group deliberately limited the number of named plaintiffs so as to fall be below the fifty person threshold so that the police have said if we had originally filed this with but but implicit in that is that if we had filed this because it because again the if there was any intent on section section one was to treat these kinds of cases as class action that's why they included the language and this is that in fact subsection to incorporate everything it would have been easy for congress to say covered class action means the following in subsection two that would have covered everything you wouldn't have had any fifty person threshold at all in this third section of the definition of covered class is again become a threshold of fifty we've preserved our rights to have this in this case remanded at least with a dismissal without