annuity product which allowed policy holders to invest aggressively wall protecting against downside risk by purchasing for an additional premium i had shit in the form of a guarantee that come what may be the policyholder could not lose money in any given year at some point x or realized that it made a big  mistake this is zero something if the plaintiff avoided loss access assume the leftist after they changed to cut to the chase and they continue to collect the additional premium i believe so changes as effectively changed the nature of the product that the policyholders purchased now how could this happen in unilaterally changing the terms i said section two hundred five which is a one thirteen and the beginning says changes in these accounts subject to compliance with applicable this provision is separate completely separate from a notice notification provision that applies later in say that that's that comes in later in section two zero five which seems to be the vocal focal point of the district court s decision although it is not part of mr o'donnell's complaint there is nothing in the complaint about notification for the simple reason that both the district court and  acknowledged that accept provided adequate notification in the form of a prospectus supplement prior to the input implementation of the a t m strategy nevertheless had a five ninety five the district court says access alleged failure to obtain proper approval prior to making them be terrio change was a violation of the contract precisely and solely because the policy holders lacked knowledge as the record established the policyholders received actual notice of all of these changes in a prospectus supplement there's no as i as i understand the the element of deception omission and so on that that is said to an in here in this case is that services here in new york at the change was immaterial and the department of a financial services said no that that was and that was a misrepresentation that when that was a critical omission to them and if they had got notice that it was material they would have offered a choice to your clients as to whether to opt in or not and i think that that is the nature of the not a material change and it seems to me we can proceed at least at this stage on the assumption that that was a misrepresentation well i don't know what they said they may not have said anything they submitted their papers and if they don't water and that's found that eighty two fifty one the regulatory authorities has completed its review and found that access would have all should have communicated better to the regulatory authorities when it made certain technical filings required under new york law that doesn't sound like fraud now i know max are saying what are they saying that they lied when they plaintiffs and therefore you would you know the judge sacked that's a great question certainly if this case proceeds to the merits anywhere whether it's if it's loose or precluded in can't be brought as a class action and mr wisdom with his client chooses to pursue an individual claim we're going to deny that there were any misrepresentations and i obviously but that's irrelevant at this juncture because the question as judge jacobs asked as judge sac asked and as i know judge parker is familiar with in the remodel case the question on this motion is not the business judgment the vaccine it's not what happened it's not why the question is whether this claim is salusa precluded under the artful pleading standard which requires this court as judge parker pending for the majority and remodel explained requires a look at the pleadings and the realities of the situation judge jacobs you work you understand why address this question in two separate ways there are alleged misrepresent edged omissions relating to the d f s there are alleged omissions relating to the policyholders the in connection with standard and the analysis differs depending upon which you're talking about and here is why as this court knows from the debit case which i actually had the pleasure of arguing in the supreme court where the  scase into an action with means coincides or is material to the misrepresentations and omissions to the d f s and just to digress for one second counsel said to judge jacobs in response to his question that the consent order never uses the word omission i would like to direct the court's attention among others to page a thirty nine of the record which is the consent to order and there's a title x equitable zx quote omissions from the department of insurance back to your question though judge parker the decision of the d f s to approve acce equitable implementing this strategy was in connection with a decision to hold securities by mr o'donnell and members of the class thereby continuing to participate in the a new and a that they were in because but for the alleged to judge sachs question the alleged misrepresentations and omissions the strategy would never have been allowed to be implemented  filing is legally irrelevant the reason for that is after dab it the law is clear from the supreme court as applied by this court in the ken gave case and i believe in the herald case as well the misrepresentation does not need to be made to the plaintive they're just needs to be a misrepresentation made in connection with the purchase for sale or holding under sluice of securities so there was an alleged omission in the complaint to the department of financial services in reliance upon that misrepresentation access equitable was able to implement a strategy the d f s concluded that policy holders were not fully made aware were they of all of the ramifications of this is just not explaining entirely what they were doing the omit well what i'm saying is what is the what is alleged in the complaint and in light of the realities of this case as judge parker mentioned in the amano there was a the department of financial services determined that there was inadequate information provided to it about the impact of this strategy and had they known this information the consent order is clear they may have required that the new woody holders affirmatively opt in from that mission it was made to the policyholder that same information judge jacobs there is a contention now and that it mentioned it to this one and then it mentioned into that when that image into any judge jacobs again for these purposes and i i understand your question and it's sort of akin to judge sachs question i'm not standing here honor knows fine then i'd like companies settle with the with regulators all the time but to your guess the contention here is what is alleged in the complaint and the realities of the situation is that the policyholders were not informed about the very same matters that the d f s was not informed about now in the record there appears certain and if people know that their investment options were being altered they might have given up their life insurance policies and it with tremendous tax consequent well no actually judge shaik of a couple of answers to that question there were options that were available to these holders of securities again we're not here litigating the merits of the claim but options for particular investments within the variable annuity policy that is correct but isn't the variable annuity policy itself and the security that we're talking about there are two judge jacobs there are two securities and it's undisputed on this record and that appears at the opening brief of page thirteen of my friend mr feffer that these are covered securities it's clear from the lander case that the a new it is a covered security within the annuity or various so called investment divisions if you look at mr o'donnell's policy which is in the record he has a series of investment options available to him within what are called divisions there's a conservative allocation there is an aggressive allocation there are numerated in the policy this purchased or was purchased for him when he gave the money to acts of for the you know what he acts in turn purchased accumulation units those are also securities those are recent akin to the interests in the various funds that he was bo his behalf so they're both securities what we are arguing is it's in connection with because he held on to those accumulation units rather than for example shifting them from the investments he was in to investments with a guaranteed interest rate which was not dependent upon the stock market he had the ability to exchange his annuities certain piece every year free of tax consequences and let me just alert the court because it's still inside the variable annuity policy that is correct or not that is correct if your honor looks at pages a one hundred three a one ten a one twenty two a three and those of are examples of the types of options that he could have put in his investment in so to answer judge parker your question it is in connection with because it was material to mr o'donnell a because on the basis of the application about the materials that were submitted to the d f s d f s gave approval it's a can your honour's to the decision in the rubin case that we cite in our brief were misrepresentations were made to the securities and exchange commission by a defendant in a litigation in connection with which a registration statement was declared effective states cision of the supreme court made that determination in dab and the supreme court concluded that the in connection with meant that it had to quote coincide with a purchase sale or if it is material to an investment decision yes that's your answer an affair in connection with is superfluous in the sense that if it's material it's met the department of finance and services says and anything going on here the company says nope and the class action is begun seeking the holding of a security people well yes but i think the question in that context would be did the fraud would that with the fraud have been material to or coincide with the investment decision if what you're saying is that they were holding what i apologise for on it were they holding because of the fact that the d f s had been lied to or were they holding because the d f s had given the company permission that's that's the question in this case no but the didn't that whole thing because the d f s had been lied to with a whole thing because it was a really good deal and they were paying for something that they wanted they were getting your honor there were two answers to that which is why it's so critical to distinguish your hypothetical from this case in your hypothetical the d f s did not give the permission to the company to stop paying the dividend in this case but for the s giving acts of permission to do what it did it never would have happened it was required by law by forty to forty of the new york insurance law which is the sole basis on which the complaint claims could have been a violation of law here the allegation is the d f s was not told everything they needed to know as a result of that the d f s now asserts they gave permission to access to implement this strategy there after they die by doing nothing correct but no no no well no actually the allegation your honor i have to be very careful the allegation in the complaint is that as a result of the passage of time under the statute axel was deemed to have obtained permission from the d f s to go do it yes that is the allegation in the complaint whether as a matter of fact down the road that's what gets proven i just won that at but that is what's alleged just wrong which is very very different your honor from your hypothetical because in your hypothetical the company went ahead and did it and then the d f s what's up and th are nothing but they had done it already the harm that occurred to the preferred shareholders was as a result of the unilateral decision to suspend the dividend of there was actually an application of some kind one hundred percent your honor and where that can be found is in the consent order the whereas clauses and specifically your honor in paragraph two on page eight thirty nine of the consent order it reads quote in two thousand and nine two thousand and ten and two thousand and eleven acceptable filed with the new york state insurance department in the d f s requests to amend in re  state pursuant to forty two forty eight paragraph three on page a forty says these filings blah blah blah failed to inform so yes there were filings made which is why with respect it's very different than the hypothetical you with us today claims were if you're correct in these claims were restated purely as contract claims and not not class farm is it access position that the  limitations has run your honor standing and i sort of read it i understand the question you're asking i understand the question you're asking i do not know standing here your honor whether the issue of filing it because if mr o'don filed a complaint under typical rules the statute would be told based upon his having filed a complaint i don't know the answer to that question stan if you just as a matter of law your honor  gets more complicated yes you're on it well except except that he certainly clear he certainly has the right to file an individual claim the supreme court made clear this is not preemption this is for class actions only if he wants to bring a claim he is free to bring that claim sub and i'm not believing your honor i want to be as candid as i can but i just don't know the answer as to whether or not the statute would have run based upon the filing a complaint but with respect your honor either the claims ourselves are precluded or they are not whether the underlying claims are now barred by the statute with respect i know why you're asking shouldn't make a difference to that legal analysis it may seem unfair to the court if that were the result here you also know i honestly don't know your honor may i take i know i'm so far off from my time but i want to just say what i want to say and then if the court does not wish to hear about it i'll sit down there in the reply brief there was some very serious allegations of forum shopping and improprieties by judge broderick in having accepted the zwei human case and then the o'donnell case as related there's even a suggestion in there that this is akin to the situation with the stop and frisk case involving judge sheindlin i just would commend the court in the decision of this court relating to th situation with judge sheindlin in stop and frisk seven thirty six f third at one twenty six note seventeen there is a lengthy discussion by this court about the facts that caused that  to reach that decision none of those facts are here factors or here the assignment system was completely appropriately done and i have to say that because there were some very scurrilous allegations made in the briefing here on that subject thank you for the additional time i appreciate it through the complaint the three complaints that followed our filing also withdrawn there was no appeal pending then when mrs w plates but that's of no moment what is of my moment is that axa filed a statement of relatedness when in fact there was no case for which it could be related to and the at that time that was my point one when they accused us of gamesmanship we did not want i don't think my client should have to litigate before a judge handpicked by the defendants in violation of the local rules on the distribution of business among the chicago judges if i believe that the only omission on misrepresentation that the that axa points to is in a caption which is traditionally not part of an agreement or anything that the fs could have simply said they lied to us or some known words to that effect instead they danced around the issue and access issued its press release which certainly didn't say anything like that  while the case was while the filings were under review nobody knew about it so they could trade based on it and the before was implemented this is just a simple just a simple few paragraphs contract claim and nothing else thank you thank you for your indulgence i thank you both