morning i am richard bernstein for the appellants the district court erred in approving the settlement while failing to reject erroneous ripe legal challenges to a protest though offset but with respect to the program to the pro ten to offset the judge specifically said this is an s b a twenty five they had with that whether there would even be a pro tanto offset whether there were any come in them or just is going to be left to another case and will be decided quote consistent with the implicit belong exactly what danny said you shouldn't do and to be even clearer denny said and this is on page two seventy four of danny the what the district court is supposed to do and then he actually said this twice is quote specify how and it referred to the offset will be calculated here the district court failed to provide that predictability which i irrelevant to the proton to offset the pretend don't offset is based on the allegations in the release in the nasdaq action complaint that is fixed that will never change in the reason we know that it is the allegations and the release in there's that action that control is that both the statute and this court have rejected the other two alternatives there are only two other two alternatives that have been proposed here one is the plaintiffs that were that was rejected in the n t and in saying or in the restatement second in everything because actual causation is irrelevant to the protein to offset it may have some relevance to the proportion of fault offset but you get t nasdaq of said is there oh this is all said only employs the same plaintiffs it applies to people imagine this one individual case and the supreme court has said class actions have to come out the same way a plane of sues comes in sues nasdaq and it says representation or because that getting more shares than you want is the entire alleged but for cause of that loss if i've never gotten the more shares i want any loss on those facebook shares i don't want the shares i paid forty dollars for at the end of may twenty second they were thirty one if i'd never gotten the shares i wouldn't have any loss at all and that is exactly the situation addressed in principle by singer which is damages being alleged in the second case in other words if there are more damages in the first case but the damages in the second case were among the damages alleged in the first case there's a protein to offset the case they rely on gerber is the exact opposite that's where less damages were ledge in the first case and there the court doesn't leave open a question of law which is the error here the court left open a question of fact here you have you have two different courses of loss and in each of the two cases it may well be that there that there has to be an offset and it could well be that ultimately would be decided that it would be protracted but it might also be this case all that was true in denny the defendant could always win the second case and then there's no offset of any kind but denny said and he said nothing about about what it would be except it would have to be adequate with respect your honor i think and i think that he said two things i know you wrote during yes and i would refer you to your words at two seventy secs where you said where you said it would be wrong to further district court to say i'm going to leave the decision that it's based on the complaint not on allocations that's a fully ripe legal issue now we want a decision that the complaint alleges more than made teeth damages that's a fully ripe legal issue now actually there's a different causation alleged in each of these two different the alleged causation of the same injury even if you look at denny there was the banks supposedly did one thing the accountant supposedly did another thing the lawyers do the third thing they did different things and it resulted allegedly in the same injury correct here the ingle injury with the single and here is the single injury with a single loss in this case according to the nasdaq complaint people were forced to hold facebook shares and this is paragraph two thirteen to two eighteen people were forced to hold facebook shares and to hold them after the eighteenth says the majority of customers  then held had to hold them on the twenty first quote an inferior price is that it's clear alleged but for causation that the laws continued after the eighteenth indeed in the same paragraphs they say the misrepresentations continued after the close on the eighteenth and i know the court knows as the author len tell the judge can't have lost causation complete loss causation until the misrepresentations are over and here they were mis representations about the matching process that continued no that was on the close after the result and on selling on the twenty first and that's why we say los good morning your honor john rizzio hamilton from bernstein little it's burgen grossman representing the lead plaintiffs in the facebook action continuing before the district court we are a pelleas here in the gerber case this court held that a district court approving settlements judgment reduction provision is required to specify the method of judgment reduction and that accorded with this court's decision in denny as well which was issued a few years later and that is precisely what the district court did here as the court is aware the district court adopted the same not only specify the method of judgment reduction in in the judgment but it dop did the same method that was approved in gerber which provides for the greater of the  an open question at this point that could be informed by a number of things one is emitted leak the complaint in the the release in the nasdaq action another would be the evidence that that's developed in connection with the facebook defendants affirmative defense of negative causation which will be litigated at the trial another source that one a district court could conceivably look to to answer the question is the plan of allocation  years now they've taken the position on this appeal that the plan of allocation is irrelevant as a matter of law i could see how those approaches would give you all or nothing answer that that's true and in fact judge lynch in his right decision stated that what matters is the underlying injury and not the pleadings that that characterize it and that's why i think that where you have a situation like this one where the question of  which damages fit in which bucket that is which damages are attributable to all the to the misrepresentations at issue in the facebook case and which damages may be attributable to the technical glitches stemming from the the nasdaq exchange in this case th questions actually going to be litigated heavily in the cases continuing before the district court that's right there's going to be extensive expert evidence and fact evidence that that is going to be brought to bear on this question that the district court will have the benefit of when deciding which provided presiding over both they were separately consolidated but they were coordinated pretrial purposes before him and so i think for that reason your honor not only does the district court's decision accord with the law of this court as set forth in gerber and in danny but it's also supported by strong practical considerations about would have an answer will be available to the district court when the common damages determination  made you know defendants have also taken the position in their papers it didn't come up mr bernstein's presentation in which they stated that if there is any common damages at all between the two actions that the full amount of the settlement should be credited under the proton tow provision we disagree with that we think that the court's decision in gerber makes clear that the judgment reduction  shall only be the settlement i should say shall only be credited against any later judgment in the facebook action in so far as only the portion of the settlement attributable to common damages will be credit that's that's the language from the gerber decision a page three of four and we think that it directly addresses and refutes the appellant's contention on that score your honour's i really do think that the analysis here is as as straightforward as looking at did specify the methodology specified in methodology approved in gerber and that that is really enough to to resolve the appeal so i don't want to fill air time and i'm not going to make any for the presentation no less the panel has any additional questions for me which i'm of course happy to answer thank you very much here from nasdaq to take up where the questions to my colleague were no dispute the denny said is that what the first settlement improvement is supposed to do is specify have the offset will be calculated i all you say is it's going to be protests and though or proportionate all you've done is said go look at the statute that means then it means nothing us how do you know and that's the critical question because all of the disputes in this case are legal questions that are best decided now dispute one which is this positive the complain the release on the one or the plan an allocation can't be the plan of allocation singer and r rejected the plan of allocation but that's a legal question and it should be decided now while the very nasdaq plaintiff's attorneys are before the court and saying yes we come in them and choose the restatement second says that the purpose of the protests offset is to make sure that the plaintiffs does not receive quote this is quarterly no reply brief double compensation on the basis of you should prevent that inconsistency by ruling now and as that plaintiffs can see yes we allege causation on may twenty first may twenty second the facebook plan of saying no you didn't and in fact there is no causation on there that is exactly should have addressed and rejected the legal challenges that the off set and those legal challenges are wrong therefore and because it is the complaint because the complaint says may twenty first may twenty second  allocation it's not actual causation you don't have to wait for any findings in the second case and therefore in this case there are coming damages and there will be an offset and then trick your question about the overlap singer precisely addresses the overlap but since if the first case alleged more damages then the second case but the second case is the damages alleging the second case were alleged in the first case so if you think of in the diagram big circle is the first case second case a small circle within the big circle then you get one hundred percent protein and the offset the all set b is made east that's based on the allegations based on the allegations correct gerber only applies when the second is lawyers law school to seek as much as they possibly can and even more than that in terms of your claim for damages so the first case is is always going to have its say if it's a attorney on the allegations is right he's right so it's legal questions is it the complaint or the allocation it's a complaint is it alleged causation or actual causation it's alleged causation because actual just another name for actual liability and that's the proportionate fault not the proton to rip and singer tells you that the amount is through the full settlement amount is to be the ducted against the judgment in the second case and just to be clear there's no dispute here that the second case alleges them is on the twenty first and the twenty second the only dispute is whether the first case also allege damages there we think that should be clear on that paragraph through thirteen through two eighteen to ninety nine three eleven and three twelve all of which are part of the federal securities claim and gerber's distinguishable because as footnote five in the case that was  case now where the first case alleged a little more damages in the second case that was a case where the defendant said there are damages being alleged against us that were never alleged in the first case that's gerber then you don't leave open any question of law you simply leave open the question of fact or the damages found in the second case part of the damages found in the first case in which singer controls and there's a full offset or the damages found in the second case because there are damage will reserve decision