returns and minimize losses for the long investors they also bring circulars for both deals also stated that the success of the deals would be quote highly dependent on the expertise and skills of the collateral managers as we case i'm not saying in every case were very might be more specific content of different sorts where you have an intermediary like b who has been given the misinformation  a claim for broadway information was given to intimidate every all you have to show is that the plaintiffs receive the information from someone who received it from the defendant and the defendant intended the misrepresentation to be conveyed to the plaintiffs judge colter you ruled that way in i'd be trading with a strike on global equities at sub three hundred and thirty five dollars to full and that is the law and that's exactly what happened here the statement are you saying a recommendation from are the recommendation from i came  that representation they were told that they would be selecting the collector role in all kittens and that actually i would be selecting it in such a diary and that's exactly what they told her i don't believe that answers example where the situation with magnets suggested to bond james burke reject them and then all hell breaks loose we have all the e mails on page thirty six and thirty seven of a brief i believe people in wh he says i got comfortable with it but surely that's a matter for the jury to decide whether it was really comfortable with it or whether he was pressured into it because we know with a long shot that mr beck was forced to do certain things that he considered to be unethical he said that to his production so you so your argument is that well cudi is bringing pressure to bear because they work to follow the magnets are suggestions but not that magnets are actually exercising control right well in that example i gave it was what there are other examples where making magna cum directly puts pressure on on the collateral managers for example magnetite said you have to choose bone death to be a two hundred short interest is as good the ability to influence the collateral manager and in fact that this particular cd old was created by this short investor as it did both ways to carry out it that the the idea that harding and say all are making decisions was untrue it's that they should have disclosed the magnitude was out there having to do influence on the parent company that could influence the behavior of the and they cited basis the district court cited basis which plainly and in the securities case in new york state supreme court appellate division held no loss causation because the loss would have been suffered to the c d o in any sport under any circumstances so that appears to be what the what the here we paid a premium and our expert calculated based on the difference and ratings we had the rating expert whose opinion was accepted by the court the law that these securities with a great had been rated very differently had the conflict of interest be jones day for the at least the decision below should be affirmed that was a theory of the case and allegations and snippets from e mails that were sufficient to get this complaint passed the motion to dismiss  years of discovery depositions documents produced have yielded no evidence and certainly no clear and convincing evidence to support the story the plaintiffs laid out but the score in fact the story itself has changed i believe when the court when the court last heard from the plane that's the theory was that the c d s were somehow designed to fail and that magnets are had dictated the selection of collateral what we see in the replies papers before this court on this appeal is well there was a specter of influence of magnets are that should have been disclosed the fact the matter is they've had an opportunity to examine the very e mails they cited to you seven years ago they've had the opportunity to take the depositions of those individuals who wrote those emails and the fact of the matter is they're inferences and their speculation notwithstanding the evidence  evidence that could be presented to a jury simply does not support a claim of fraud by clear and convincing evidence on multiple elements i'm going to address two of them in particular but i'm happy to answer any questions the court might have and i'll start with reliance and then trying to plaintiff's did not rely on any representations from the defendant period what they relied on and the only thing that the plaintiffs relied on and this is from the deposition testimony of the thirty six dollars witness for the plaintiffs mr shane hollywood and what he said is the sole document they relied on was a investment recommendation from i t v and that wasn't a one page investment recommendation that said  responses about one at no time to the collateral manager as represented by key that the collateral managers would not be seeking input from other investors in fact i could be itself gave input to the collateral managers about the eligibility criteria i could be itself received drafts of the offering circular and mock them up let me just pause there for a nd i could be was marking up drafts will be offering circulars it certainly did want to ask questions of the collateral managers and say are you speaking to other investors it could have in fact the testimony from i gave you was we had our set of issues that we wanted to discuss with the collateral matters i'm sure others did too they never shared any of that with the pla that were being done at the request of equity investors to someone else was requesting a change in how these deals were structured i continue that never shared that with the plaintiffs and that's why getting to the question that was asked before about what role i could be played this fits squarely within an issue and a pattern that has been addressed i believe not once but twice by the court of appeals on certified questions what happens when the intermediary is not simply a conduit isn't simply paraphrasing and sending along information but instead doing its own analysis sending along some snippets but creating entirely new analyses and sending entirely new analyses to the plaintiff and that's what we have here what we have here i think the phrase that was used both and no representing either the sum or the substance of the defendant's representation so the mere fact that the word independence never used by the defendants were independent is never used by katie because i could be knew that there were others who could speak to the collateral matter who could let their views be known as mr corpus that these are private placement deals and as your office of notice with very very sophisticated parties if they want the deal to be set up a particular way they have the ability to make that ask  enough even when the intent is clear there actually has to be transmission and that was really the point of the dissent the point of the dissent from judge fahy in the court of appeals was it should be enough where the intent is clear and there's reliance that should be enough you don't need transmittal but what the majority made very clear is you've got to have background metal and that transmittal has to be a conduit type transmittal it can be a filtering or a filtering trial analysis that we just discussed security like that would be a misapprehension of the information they were receiving all that they were told is that there were collateral managers and what the qualifications of those collateral managers were a lot of what they were told about the collateral managers what the keep these evaluation of the metrics of the collateral manager that's an analysis but they created completely themselves it looks like a spider web and you'll see that in the in the diagram that's a spider web but they created the assign values to it they put whatever weight they wanted to put on what the qualifications and backgrounds and abilities of these collateral damage were managers were that's what the plaintiffs relied on they didn't rely on the disclosures that were in the offering circular which inquired further and this court is so if you're discussing reliance on justifiable reliance and if it's i keep the party that supposedly relied on the defendant's well then i could be didn't do its job and that's not  and the reason i believe that is because he cites bases if all he was doing was saying well i found no misrepresentation and no reliance therefore there's no loss causation for her i didn't do that he cited basis and basis is on point for a couple of reasons one is it deals with cd or not it deals with precisely the types of securities that are issue in this case it cites basis cites extensively from this court's decision as to how do you determine whether or not as a matter of new york law there is loss causation in the midst of a market white selloff in precisely the same types of securities that are issue in the case before the court and the fear you're fraud and basis was analogous not identical with analogous to the theory of fraud that's being suggested here which is that the collateral manager would pick safer r and b s assets and not toxic assets and the collateral manage supposedly lied about that and what the basis court found was that did not make a difference that's not what caused the losses to the plaintiff's investment and the same holds true here even if you assume that magn underneath a tree that happens to fall meeting the speeding put you under but three so there was bump or cause friends after causation but no law schools a hint and it's up to i believe the burden of proving loss causation is squarely on the plaintiff's and i believe in basis which has a more extended discussion of last causation than the case that the district court opinion here in basis there was a discussion about what evidence the plaintiff failed to come forth with because clearly on summary judgment one of the things we're assessing is is there sufficient evidence in the record is there an absence of evidence in other words that would allow a plaintiff to prove with clear and convincing evidence to a jury that there is loss causation so the absence of evidence becomes relevant on summary judgment that was certainly true in basis because there's an absence of evidence from the plaintiff saying that the loss would not have occurred but for the fraud that the market answers one is if you follow the plane to spirit which is well we don't need to look at what happened ex post what happened after we made the investment you simply should look at what happened on the day we made the investment and if there's a purchase price disparity that's enough wrong wrong wrong wrong on the law because that's simply the measure of damages that's recognized by new york law what allegany also says is you still have to prove that that  purchased a disparity in price was caused by the fraud of which you complain you can't get away from the obligation of making the connection to the fraud so the blame to argue well we have a loss you can measure the loss by comparing what we paid worse is what we think it was worth where is the evidence of what these notes were worth other than par on the date they made the purchase in fact the complaint deplete exactly the opposite in the complaint they pl purchase price proved last i do not i do not and for several reasons one is in the context of securities transactions whether or not it's under twenty five on the new york common law there are many many cases the basis is the most recent case which applies the concept equally to publicly traded securities but also not publicly traded securities the c d o notes and basis were not publicly traded and the notion is as a investor one thing you do look at is what's the purpose of the investment in this case the purpose of the investment was the cash flow cash flowing as long as there was cash in than allegheny but storms doesn't apply because they start off the analysis of loss causation by noting that there is a distinction between securities cases and the fact pattern that was before the court now again so by terms allegheny says it doesn't apply in the sale of securities so your your proposition is that a difference in purchase price can never be patient i don't know if i'd go that far and i don't know if we need to go that far to say it would never be i think i think the connection is what is the loss what is the damage you have incurred when did you encourage it and when you incurred that damage was that proximately caused by the fraud of which you complained and we know from the pleading in this case over she just didn't wouldn't have made different decisions well i don't know what the point what the plaintiffs themselves would have done we do know that they were autopilot in the sense they got a recommendation from mike a b and they accepted it that's the way they operate he certainly was aware that there were other actors with different investment strategies that were also in the same market that they were participating in in fact they had a report that said you know the c d o those are far too risky you should be investing in them you never share that with the with the plaintiffs so i don't know the motivations clearly in hindsight the plaintiff is always say if only i had no next i want to make the investment but there's nothing in the pattern of dealings in the questions that were asked by katie off the defendant the information they s short position and that's the point here mr temby spoke about i could be being involved in the process asking questions knowing that the equity investor was asking question the equity investor if the pure equity investor then the bottom of the temple structure corporation that would have raised all kinds of red flags and they would not have recommended it now on the question of whether or not these representations was just as a conduit this is what an e mail said from two thousand and six  you would be doing its due diligence with whatever walk over you submitted to katie but that due diligence and that on work doesn't negate cussing of the mr presentation  common more broad claims made a distinction between that type of lawsuit not between whether it security or sell a business otherwise there would be a difference between selling the business of selling the shares in the business which doesn't make any sense thank you thank you very much mr corpus the case