i think there are serious procedural and substantive issues with the district court's disposition below i'm going to start with the procedural issues because i think they're more straightforward the purpose of the article three inquiry generally and the standing inquiry in particular is not to decide whether the plaintiffs have a good case or a bad case but to decide whether if the police have a good case it's the kind of case the court has the power to decide and there's a really important reason why why or i should say  and for that reason there's a pretty straightforward procedure that applies to these cases the court most recently articulate in a case called i think the police and i might be mispronouncing it and said that the court must quote accept all that we gave in the plaintiff's complaint is true and assume that they will prevail on the merits and what you're trying to figure out is assuming that you have the kind of claim that could prevail on the merits will we be able to render a judgment in your favor and there's a really important reason why we're answering that question and it's not just to protect point of straight to go to court it's also to protect the defendant's right because if what we have is a bad claim a claim that is the kind of claim a court ought to be allowed to decide but we just don't have the goods then the court should be entering a marriage disposition against us and not all of a sudden determining that lack standing if the approach to article three articulated below is correct it will turn the court system essentially upside down if you go to the jury all the way to a jury trial on the question whether and the defendant says you didn't prove damages and the jury finds you're right you didn't prove damages on the defendant in the district or theory of standing the court and then dismiss the case for lack of standing rather than actually found find that this was adjudicated against plaintiff zooming argue under that they did have damages it wouldn't be the kind of damages the record is permitted to recompense that's if that's exactly right there are cases in which we can assume that the plaintiffs can prove up their case they can prove whatever it is they say they have as damages and the court could still find ok that's not the kind of injury that counts as injury for purposes of article three stating that that's and remember almost every case and in fact every case that i can find that presents this kind of issue does not involve a claim for economic damages involves a claim for an injunction i want them to stop doing this river i want them to stop violating this is ministry of rule and the injury asserted is collateral to the school professor brought a lawsuit making the same substantive allegations that you do about what the defendants were doing that is illegal and i want them stopped and the reason is  turns my stomach to see people doing illegal things like this and maybe they should even compensate me for my feeling you know every morning that would be the sort of thing where the players do not have standing correct but you're in it for the money oh yeah we think we lost money and we'd like it back and you know i don't really think that there are almost any cases that involve a court saying that kind of claim is not a claim that a federal factually not true and then the court is authorized to make fact findings right to inquire into that at a preliminary stage and determine its jurisdiction so one of the questions that i had is is there ever in your view a case in which a standing issue would present the same sort of thing in other words it seems to me that what the defendants are saying here is that  because they think you can't prove damages the court should sort of decide that issue up front as a factual challenge i mean assume that instead of doing what they did because i know you want to say that what they did amounts to a  some other benchmark that's independent of the library so they're just out to lunch on that issue would that be something that the court could consider the factual merits of at this stage i think the answer that question is no the court's cases have not this court's not been very clear articulating the distinction but i think a relevant way to think about it is not actually whether it's official challenge or a factual challenge as such but what that usually tracks to is whether the issue of jurisdiction is collateral to the merits or exactly the same as the merits question and when you have a question like causation and causation is a part of proving damages like in a tort case you cannot go assuming that the point of can't prove causation purposes of establishing jurisdiction because there will never be a way for a federal court to adjudicate a case right at some point so one has to decide anything wrong with it that the courts reliance on lead in saying that this is something that we've already determined as a matter of fact and you can allege things that are you know false and economics yeah i'd say there are at least two problems with relying on late and one is that late is just wrong and i would like to talk about the substance of we can't because leaving just refuses to credit a declaration that be six case knowledge won't be one case and the standard is not identical so you would not apply the same standard that was applied by the district court lead in to this question but i i do think that would be a somewhat pyrrhic ground for us to prevail and i don't think laden was correctly decided  eight either and the only reason we haven't appealed that yet and prevailed frankly is that we're not allowed to because they include but you know like i said we've allegations that libel or is directly directly affects the contract like there is a young light worktop in both a swap and the swaption and as a result the value of that instrument is immediately affected by what is true of you live work on any given day it could be higher or lower and swap or the swaption any given time to the extent that there's any ambiguity in their leg ations the rule of the court is really clear that the general allegation includes the specific allegation for purposes of the rule twelve standard and so the court should credit should be should be willing to accept that we have when we say we were injured that we got less money or we paid too much money for those instruments that we mean that we either underpaid or were in life making money off money if you stole some of that out because the way let me state what i think you're saying and tell me if i'm wrong because i had to make this up myself out of the background material as a better indication of the true risk free rate than treasury rates for various reasons and therefore the term risk free rate in this book should be interpreted as the library rate and then a few pages later  his way of treating the formulas as we define our sub something as the value of the foreign risk free investment rate when money is invested for time t and the risk free investment rate is libel yes so as i read it what when you look past the specific allegations of the complaint to the supporting materials that are cited complaints with footnotes are now come in from the lawyers business and so it's interesting to keep going back to term our term in this formula would be filled with life yes exactly and in fact we submitted a declaration from one of the plaintiffs chief investment officer is that says the industry were all the time or specific defendants have settled and they're out of the case are allegation in the complaint in include manipulation of your oh yes taieb or there will be a finished and explain why the c m e article that you've been discussing makes very clear that there are term in our base in points to the formula are not libel and cannot be libel or in any event they certainly are not libel or in every instance and plaintiff's theory in this case similar to harry vetoed gas is that their ethics forwards were affected because every ethics forward is n the complaint it says what the what are term in our base inputs are our term is the short term rate at which one may affectively borrow the term currency and our base represents the short term rate that may be by investing the base currency that's not libel or that's the rate at which the party to the contract or in some one of valuating the value of the contract is is including their own borrowing and lending rates available to them and it goes on to explain that one can calculate the appropriate forward price for the fair value and compare it to prevailing forward prices if every f x forward was priced using benchmarks there would be no comparison possible everyone would just be pricing it the same way because the other inputs the spot rate and the number of days are are fixed at a certain time of day and then it says another way of analyzing the situation is to calculate the implicit terms or base interest rate and compare it to prevailing rates well what they're saying is you can solve for our base or our term and they show the formula there and calculated if that was a if that was the law of war there would be no nothing to calculate libraries published once a day so  plugged in it would be a fixed term the way the way this formula works is that two parties contemplating entering into a forward contract can compare the value to them based on their own borrowing and lending cost available to them and when they see a difference it's or they see a risk free arbitrage opportunity if i were is used by everyone as the input the contract the formula doesn't work in the contract has no facts that they wanted to present for example to show that their f x forwards were priced and live or they had those that didn't present any factual showings you challenge to sensually using only the materials that are in the complaint well we we challenged using a complaint and c m e article which was not an exhibit to the complaint and under those incorporated by reference and it is this is it referred to it's cited this is a twelve b one facial if you want to use that term challenge my way i'm not i'm not understanding why this is a matter on which a district judge makes a fact finding based on very preliminary matter on a challenge to the face of the complaint rather than something that should be addressed i mean i don't understand how these foreign exchange transactions work i must admit what i thought when i read the complaint was something akin to what you said that these are specific deals between two people were two institutions or whatever one betting that the currency is going to go up in value against the dollar or some other currency in the other betting that is going to go down but it started to sound in reading the plaintiff's materials that some at least of these are kind of things you could buy in the market that a bank offers i don't know what's true and what's not well i don't know why i should have to decide or why i am entitled to decide what's true and what's not true when the plaintiffs clearly allege that certain things are true as factual matters and they've even got a guy who comes in and says the right whether that person is totally incompetent i don't know but that would be determined in some sort of daubert hearing at some later stage of the case i would think in the normal course you're your honor take your point i 'd prefer not to dwell on whether it was a facial or a factual challenge i believe it was a factual challenge because we submitted c m e article plaintiffs referred to a factual dispute in the motion in their opposition to a motion to dismiss and on appeal and they submitted declarations of their own ultimately i don't think it matters whether we treat this as a factual or facial dispute obviously a if the judge resolved a factual dispute it would be subject to you right out of the question is whether the judge is intitled to resolve the factual dispute about the plaintiff's damages case it absolutely was because jurisdictional facts were placed in dispute both sides agree on that and why do you think it's a jurisdictional fact i mean it's one thing if somebody comes in and says you know i just don't like the fact the polar bears are dying and so i want to challenge what exxon is doing in the arctic and the issue is well you know me standing to do that  se you're not really injured in a way that the courts are going to look at that's a very you know we're not inquiring into whether in fact the guy is lying when he says he cares about polar bears it's a question of whether the  the kind of injury that courts have jurisdiction to consider here they're alleging something whether they're correct or not that is absolutely the kind of injury that federal courts are empowered to cope with right they are alleging the type of injury and economic injury that a court can cope with but even even on a facial challenge a court doesn't  accept and give plaintiff's inference the benefit of inferences where there are more specific allegations that contradict them more or exhibits with that that contradict them maybe but that's still something very different than making a factual determination and what i'm concerned about is aren't you advancing a proposition that effectively would allow any defendant who challenges the ultimate damages case that the plaintiffs are going to present as a factual matter to jump that to the head of the line and make it a standing challenge i don't think so i think it's going to be a rare case but it's not an exceptional case this is exactly the issue that was addressed in john v wholefoods in and  in total gas now the plaintiffs in john the whole foods for example said they must have been overcharged when they are i think she's in cupcakes and whole foods and they base the allegation reversed because it was within it was affirmatively and plausibly allege that that the plaintiff was injured in harry it was a similar situation the question was whether injury manipulation at one hug affected all of the other hubs such that purchasers and other hubs would have been affected in the court said it was within the realm of possibility that every hub was affected both cases involved economic injury what i'm saying is that in this case it is not affirmatively implausibly allege that these interests that these interests were affected by war and it's not within the realm of possibility that every  think what the district court was getting at when it used the term definitively was plaintiff's allegation that it's well established that f x forwards are always priced to live or so he was saying that's not definitive in other words not every they haven't shown that every f x forward is price t and libel just as in harry you know the question was whether the plaintiffs had shown that every it's possible that manipulation of for just two quick things i think it is the case that these are exactly the kind of issues that need to be worked out sorry it is the case that these are exactly the kind of issues that have to be worked out through discovery document production and the like we have a witness who is willing to say that when they evaluated these transactions they did so based on an industry standard formula that is pegged to is just the kind of thing that we would test with the ordinary methods fact and development and then i  point out all sounds very plausible to me but the maybe this is just a problem with the for the class action stage or something else but it seems to me that part of the problem here is that in formulating this in a very abstract class based way you actually don't seem to have somebody saying i did this and i suffered that in other words as we were talking before about  ther you know what the effect is of reading library as i've always understood this alleged conspiracy of the idea was that banks would submit figures based on what was helpful to them at that day sometimes would go defendants point out as to one situation someone in your class might well have been helped by by this and that gives me some pause because now i'm not sure whether you're you' e got anybody who's saying this actually happened to me in a way that disadvantaged me and we talk about the swaps i think one of the things that concerns me is you've got an instrument that unlike the foreign exchange forwards is specifically pegged to live work that's great then they come back and say but you don't allege that any of these things ever came to fruition in such a way that you could calculate at the end of the day whether somebody did better or worse as a result of the libel transactions so i'm having a little trouble getting my head around transactions is the disputed march rd transaction where i think we have a difference of opinion which direction the manipulation would have benefited the rest are very unambiguous allegations that we took this position on this day that the c f d sees settlement documents in fact to demonstrate manipulation on that day and that that manipulation would have favored the bank's position and harmed our position so that and those are actually extraordinarily precise and detail that in the complaint there's there's also i think and this is really important there's a suggestion that you know both sides have to evaluate the deal and they don't evaluate it by reference to live war and we're somehow pleading that everybody always  libel or and there's even one person that rob a bank and acknowledging i understood the parties taking opposite trading positions could be negatively affected and i knew some of these parties that could be affected were american national institutions when i made these submissions designed to favor the banks trading positions right so we're just the other side of those transactions the the banks acknowledge that when they make these transactions they made by reference to you and incorporating in the math yen libeler and they know that if they nudge them in favor of the bank they're not doing them against the person on the other side of those transactions that's us and we would like our money back