resulting in payments to trade during the class period of over four hundred fifty million dollars in violation as i said of his studio best execution this policy was not disclosed to its customers harmed as a result of this receiving worse prices for their trades or having their orders unfilled as a result of the secret routing policy studies indicate that the class wide damages will measure in the hundreds of millions of dollars are all well pleaded facts that forth in the complaint supported by detailed analysis of both individual trades academic studies and analysis of the system disclosed by by the trade showing rely on the presumption of alliance established by the us supreme court in the affiliated  honor but that's not a difference that's important here because the important thing here is there's no question that a broker owes a duty of disclosure to its customers and house in terms of routing its policies when a customer gives an order to each trade it gives each trade complete discretion as to how how to route that order and if the law is and each trade has a duty to route that order the best interests of that customer because it has complete discretion look at your claim as i understand it but correct me if you think i'm misrepresentation versus a mission begs the question it's really not very helpful it's kind of the result because almost any misrepresentation can be cast in the nature of an admission and vice versa so what is important when determining about the application so if it is going to act in self interested in interested way but has it to disclose that ever we ever sanctioned this view that deceptive but if we have sanctioned the view that there is a general duty to disclose that we are have we ever held that you that that imposes a general duty to disclose that we are not acting or that we are acting illegally that's really  participation in the market market participation by the by the bank in that case but essentially the program of a market maker that was undisclosed to the customers that which enabled the bank to profit at the expense of the customers and failing to provide exercise their duty to this extent that the your problem was that you followed your thirty minute complaint in august of twenty seventeen and then wagner comes out in nov twenty seventh and arguably changes the playing field a little  bit and now the president says if you're going to rely on a misrepresentation then you can't try to convert what's essentially a misrepresentation into a half truth or a actually actual hidden conduct itself very similar to u b s very similar to newton very similar to smith barney these cases where it is has been provided so we would submit that affiliated to this is should be probably categorized as one where and from a practical point of view it's not fair to put the burden on the plaintiff to prove alliance you have to prove that it didn't know that about this about in policy on stuff that was never disclosed and i never got to my primary point on c may please the court marc greenwald quinn emanuel urquhart and sullivan on behalf of each judge total addressed the third and the fourth versions of the complaint in this case and dismissed on two separate and independent grounds but not the only two grounds that were available for dismissal but each of those grounds were sufficient and the reliance ground judge kowtows decision this court's wagner decision does not doesn't not make it impossible for plaintiffs to plead actual reliance actual reliance is a element of ten b five has been from the beginning and can be pled when a plaintiff identifies the alleged misrepresentation  no we submit it didn't make any misrepresentations eatery does meet its best execution requirements but here there's an entire section of the complaint about each trades representation fiable or may not but the question that judge total face that this court faces did this plaintiff plead himself a ten b five violation and without pleading reliance and he's disclaiming actual he's disclaiming basic he seeks the presumption from affiliated cute and only by really mischaracterizing the affiliated youth decision itself can he even get there there were misrepresentations and the involve two classes of plaintiffs one class of plaintiffs had had misrepresentations made to them and their their claims went forward and the eighth circuit affirm those claims there were a separate class of plaintiffs in affiliated used to whom no direct misrepresentations were made and instead they were relying only on an omission theory that the bank had failed to tell them that they weren't acting in their best interest and it's those plaintiffs for whom the a circuit had dismissed and it's those plaintiffs that the supreme court reverse and held that because they could not they could not plead a misrepresentation since no one had made a misrepresentation directly to them they nevertheless could continue their case because there could be a presumption of reliance when it's an omission there was nothing for that class of plaintiffs two point two that's the exact opposite here when this plaintiff includes in his complaint entire section and that's called each trades promises to add here to its duty of best execution that's page eighty page of the appendix one twenty five and it goes on and on and that that because we do make representations and we say we meet them we do meet those but that their case and the way decision this is not dictate it was important to the outcome of the decision continuation of the case in the district court would depend on which kind of presumption those plaintiffs could rely on and so it was necessary to determine whether the affiliated youth decision was the affiliated you presumption was at play when the case continued as a class and the this court's decision just from last year is directly on point the affiliated you presumption does not apply to  was i would agree or honor and it was very important that you had to deal with the affiliated you decision that panel the panel and wagner dealt with it and it's directly on point and controls this the outcome here as judge codell found and the complaint should be dismissed on that ground and unless the unless the court has any other questions will rest on our  key the real issue here is i think is again on that you look on the relationship the nature of the relationship between the plaintiff class here and the defendants and this is not if you're concerned affiliated yoot and the reliance requirement in general participants to any issue out there you need to have a preexisting relationship such as exists here in the trade and here looking at the lines if you soon that each trade violated its duty of disclosure to the plaintiffs which is you have to get the but i would submit that there's no no for theory can go forward without some representations you're always going to have statements made that are going to touch on the area of the floor but the presentation is we are by our water execution there was a preexisting duty a best of duty of disclosure of those practices which defendant violated here and under those circumstances it is unfair to ask the customer to prove that yes i in fact didn't know about the secret out policies that essentially what the how you would prove alliance in this case that's what you would have to show and that that's one possible burden for the plaintiff and that's the what the tedious what affiliated is addressing by saying no no it's fair to put that on the defendant to prove the actual fight