wilson and mr matthews and i i have tended in my past career for twenty years to go over time and or argument so i've told my colleagues that today if we go over it will only be by a few minutes i promise it will be no more than twenty minutes per side as opposed to the usual whatever i do so i got to lose a i think a better if i don't know i was what i said i would do so go ahead mr wilson thank your honor and good morning to all your honors may it please the court my name is bradley wilson from the want to let them off erm we represent the underwriter defendants in this your honor i think for a couple of reasons first of all the supreme court had not at that time decided to calibers case in which justice kennedy i think quite overwhelmingly made it clear that this sort of statutes that we're dealing with here in particular the one that we are dealing with section thirteen of the securities act is a special kind of statute and secondly we are mindful of this court's decision and rank which we interpret it as establishing that in circumstances where the court established a fixed time period i pretty almost identically the nd amended complaint for the types of claims we're talking about here it doesn't look like there's any a totally new claims well certainly right there are no new causes of action that the plaintiffs did not invoke any different provisions of the federal securities laws and the three men complained but i think we would disagree respectfully with the court as to whether the complaint was different there were a number of new factual allegations included garnered according to the planets in discovery which which m different story for different defendants or different players there are no new causes of action no new legal theories at least since the st amended complaint correct well i think i would disagree that there are no new causes of action or legal theories that the this in the same provisions of the statutes it's the same kind of legal role we can then have an argument about whether you know all adding in another misrepresentation counts as a separate claim or not less we're here to decide what i understand your position but you can't take that as a postulate for the argument that's what we got a clue so the question here is it be a different case if there were new defendants or plaintiffs would be a different case if there were a new statute you provision of a statute new legal theory the question we have to decide today is is it a new claim when it's the same legal theory applied to additional disclosure additional facts etc now explain to me why we should treat it that way well your honor i think it's it's fairly grounded in the concept that a statute proposes english is a cause of action when the time period you begin the question of what is the cause of action you're begging the question because you've admitted that if it were the same cause of action you know under one hundred and fifty four it's not over till it's over it's not go so you got explain to me why we should treat it as a new or different cause of action for limitations purposes including proposed purposes well there's no dispute your honor that if there were no other plaintiffs excuse me no other defendants in the case the district court's decision in december of two thousand and sixteen to dismiss the nd image of clay as to my clients for example would have been the end of the case that would have any end of the action and would have cut off the plaintiffs ability to amend it the only way that the pla want to make it clear what our position is but let me ask you this question when we asked you whether a plaintiff may relate new claims back to timely claims to avoid a statute of repose judge people as  gone through the the routine ways in which we think of new are you thinking of new claims differently because it can't be that a party would be limited to reasserting the exact same claim if i understand your question the problem with the relation back concept here is that there's nothing to relate back to under for example this court's decision  and the problem is you are colliding headlong into little fifty four in your case and the way that the court dealt with this which is you know i don't understand whether your argument there is based on that the judge didn't express lee say hey this is without prejudice it's would lead to a man do you think that would be a different situation or is it even if a judge says those things once there's a dismissal it's gone on a rule fifty four dollars terms are trumped by the rules  the precedent that there is says that yeah i mean rule fifty four is treated as timeless for appeal is treated as timely as for station limitations there is no other rule other than fifty four that discusses timeliness why should we adopt anything other than a consistent approach for timeliness for statue limitations in appeals it would be a very odd scheme they didn't say it expressly but expected the parties to divine that well i respectfully disagree that would be a nazi in your honor and st of all i would i would say that the only least it was brought within that time the st amended complaint was brought within that time and i think you can you can tell me if you want to make a factual dispute in this case i'd love to hear it but i don't see anything between the st and the for rd that's factually different i mean that's that's legally different in terms of it's a new legal theory or anything else i certainly don't between the nd in the rd and you forfeited any objection of the statute tells us that we are supposed to treat it no action shelby me to know eventually any such action be brought to enforce a liability that's seventy seven dollars m so why wasn't this action complaint is brought in a particular court now granted that was a different context but i think the court's focus on particular complaint is important here because its knowledge is that a claim is different when it's filed in a different pleading as opposed to the earlier pleading which in th what do you look at this as a rule fifty four or do you look at this as a rule fifteen issue in terms of what you're on absolutely sure i understand your question but words how would you analyze this if you were the if you were the district court now would you look at this and somebody brought this before you would you look at those as a rule fifty four dollars issue or a an amendment under rule fifteen say well your honor i would look at that says st of all i don't think that the four be covered this question that's a that's a rule about the timing of appeals and complex actions and i believe we've made it clear that our position is that the plaintiff retains its right to appeal respect sentiment but my question is not what your answer was my question was if you choices do you have in terms of what role to look what you would if you analyze it under rule fifteen well st of all i actually do think it should be of one of the the issues that we have with the district court which is not for the court today is that the court look at this as a free man under rule fifteen when in fact if anything it should have been a motion for reconsideration under all fifty four dollars but under the rule fifteen analysis i think there would be prejudice per se or for a few to let eight percent of the circumstance because it is a new claim in our position is i think we would if i were the district court and i'm going to make that decision i would find the complaint how do you defend on the point you just said it would be a new claim how do you define you claim judge people has been through this with you and you used to have an answer to me what is new is your position that any complaint would be new for purposes of the statute of repose on the one hand and rule fifteen on the other well i think our position jeffrey way is that if there is not a claim  motion to dismiss that was granted i mean there could be odd circumstances in which of your own accord you would ask for an opportunity to replete but that that would mean that you would never have this sort of situation because you always argue it's new so you'd always be subject to the statute of repose in this kind of circumstance and that can't be if it's the same parties the same claims well  of all i think you could imagine a scenario where a party sees a most into this mess and then says oh we're going to address that deficiency forward this message we're going to amend and that would not be a new claim i think if we said in the reply brief at the most judges read away what should be permitted alternative is as we've seen in this case two and a half years ago by the plaintiffs take discovery our clients and the auditor is another defendants are out of the case and then the plaintiffs come back and say ok we'd like to try again we have new factual allegations we have new that runs into the difficulty judge greenaway just outlined which is the normal courses it's dismissed and then someone reads cleats and then you do this put work about well but you give someone thirty days so it's still contemplated and that's a little different i understand the logic whether we agree with it or not the nd is let's say that it hasn't been dismissed yet if a complaint comes along and it adds specificity it adds fact it clarifies that these are the representation this is what was said this is why i was  mislead if it doesn't have that problem being dismissed under the st airing of your argument is a problem to add a bunch of paragraphs to a complaint that had specific facts they clarified they say there are these was replete did beforehand and then the defendant raises a statue to repose argument and says hey you've added a bunch of specific facts you've added a whole bunch of clarification here this is this is beyond the statute propose you're confined to what you already pleaded the specific facts so is that is that has a statute or repose problem or not no i don't think so because you would have it would be the same claim it would just be further specificity on even adding a bunch of fact you could have three hundred paragraphs effect and it wouldn't be a statute or opposed problem i think that in fact does not create a new claim i do think though that this is a before the court if you added a different paragraph for example you offered documents in this statement which we didn't challenge for a misleading that was that's not in this case to that's how i read page nine footnote none is supplemental brief so i think now you are not contesting that adding these new facts or statements based on the same paragraphs of the offering documents is preserve your whole argument then boils down to if a court wants enters a dismissal then you know it's speak now or forever hold your peace there's a gap in time you have proposed for that period it can't be und i'm trying to understand why we should read the rules enabling act as preventing rule fifty four dollars from in essence treating that dismissal as conditional or in suspense until the entire case is over will unless the judge comes out and says it is a matter of boilerplate never you should turn understand why this gap has to be understood as giving you repose against this rather than hey the default is this should be read as not giving you repose because the whole case isn't over well congressman it's a failure on the situation we find ourselves in as we lay out our brief that at the time the steps you propose under section thirteen was an act it the congress was faced with a scenario where it was very difficult to have multiple claims of multiple party joins and this is an argument about the rule amendment coming along later and it would it would up in large subset rights not think your friend on the other side would say oh but it's only an incidental enlarge an area in which if there had been no other defendants in the case and no other claims there is no dispute that we would have been entitled to repose they would not have been permitted to and let's hope let's talk about our own definition of a new claim and i understand you're going to say calipers came employ the factual circumstances surrounding the claim it's not new so this would have to be about statutes or not not that violates those doctrines i don't think you're saying i think you're just saying cowper's and c t s come along and they just kind of change the landscape in the rd circuit and we have to kind of back away from where thomas and pencil were pointing us is that right i think that's right when you're dealing with a statue you propose it's a different ball game and the claim is extinguished and by claim i mean a new attempts to clean out a cause of action under jesus is that you have a set amount of time this year that congress is three years for my clients and the planet had new you put clarification of implication to the side and you say anything that was different from the prior complaint is new for these  circumstance are unaware of the prior complaint and the claims have been dismissed yes any any attempt to amend the complaint at this point would be barred would be ok so any attempt is new so any attempt would automatically fall within the of the statute of was well i just want to be clear we're in a circumstance in which there was no claim under that against that defendant under the relative relevant status for spending that's what i understand to be your question ok that have addressed this issue believe they didn't need to go any further than rule fifty four b and the reason for that is the statute of repose here has been fully satisfied the claims were brought within the statute of repose no one disputes that judge judge kane the district court judge said that the rd amended complaint is sort of the same claims against the same parties in the same action as had already been timely brought and so the statute of repose is fully satisfied defendants are saying that the judge's partial dismissal order ended the claims that have been dismissed notwithstanding the plain language of rule fifty four dollars b and the courts that have addressed this have generally said that fifteen c doesn't apply and you want us to adopt that approach but how do we do so in light of its what appears to be a conflict with denzel that fifteen c applies w adds new facts or employ an existing pleading and then the case that you cite yes and so your honors you know i think that that you're correct that the next step is then looking at this under fifteen c but once again under fifteen c it's a slam dunk because no court has ever held that a complaint that merely an amendment that merely adds additional factual particularity to timely asserted claims cannot relate back in without violating the statute of repose or or the rules enabling act and so we cite a number of cases on that point of course the eastern district of virginia is decision in the car car vs halliburton case is a good example and when it comes to relation back the courts have not adopted a blanket rule because not all amendments are the same and so not all amendments will step on the toes of of a statute of so the courts that looked at factual particulary like what we have here were asserting the exact same claims with additional facts have said that there is no imposition on the the right of repose that was the corner case in the eastern district of virginia which more federal practice has endorsed in red direction shares the southern district of new york came to the same conclusion and i think actually the in re sharp's run case in that when judge irene  struck the right balance i think and there he said the question is whether relating back to new pleading would truly disturb a right of repose he said where the defendants are aware of the exact nature and scope of the claims that were timely asserted against them they have neither the reality nor the expectation of repose yeah but cowper's takes us away from the notice issues so i'm not sure that that the site the judge i mean isn't particularly persuasive given a totally different case and actually has no application here so cowper's st of all what happened there is a plaintiff was seeking to toll his own claim based on somebody else's complaint it was a separate action he was basically trying to piggyback on somebody else's timely complaint and the supreme court said no you can't do that and nd helper's concerned equitable tolling rule fifteen is not an equitable doctrine and actually if you pipe suggests that the tolling rule it created was mandated by a statute or federal rule so the supreme court is distinguishing between the equitable doctrine that was being addressed in calipers which has nothing to do here here our question to you all with regard to your supplemental briefing what's your understanding of new in this context well you know it's an interesting question and it's a line that hasn't been clearly drawn yet we know that amendments that merely add specificity or factual particularities aren't new claims we know that there are cases that say when you try to add an entirely new claim or an entirely new defendant that that is barred by the statute of repose but then you have these cases in the middle where courts have allowed new claims or new parties and generally they do so when doing so would not substantially change the nature of the action and where the wrongful conduct was already alleged so for example that caused the versus k p m g case there a section eleven claim was allowed to relate back because it arose out of the same offer in documents and the court made a determination there that the substance had significantly changed the ground didn't shift in re boesky was a similar about having a plaintiff the defendant at the time the action is within the statute or oppose expects i met most liabilities three parties well you're going to piggyback another twenty five plaintiffs that's a big increase in your exposure you might have expected to insure against it or establish reserves so i think the weakest claim for you is when you're adding parties on either side that really does change expected exposure sure and the point i was trying to make is in this case we don't have to decide where to draw that line because it is so clearly on the side of merely adding factual particularities as judge in hell it's the same claim same defendant same action and i think it is even defense counsel admitted that that adding new facts and not adding claim so what what you have here is the defendants are essentially trying to create a loophole they're trying to say ok well even though the claim was timely brought so we've met the standard of the statute of repose and even though they admit that it can be revived on appeal they say you can appeal this which means three years from now after we go through trial if we win in appeal of the dismissal they're right back in the case again so they don't have any repots on the back end either but they're trying to say that we get this loophole of repose in the middle  fact is there's no such thing as an order that's final but not appealable there's no partial finality twenty eight u s c one thousand two hundred and ninety one says that the courts of appeal have jurisdiction of appeals from all final decisions of the district courts let me ask you a question slightly off at a point when we talk about relations back as and rule fifteen are you relating back to the rd amended complaint to the sure i understand that the premise of the back half of your question but to answer your question it what do what does a rd of a complaint relate back to the rd amended complaint relates back to when we made the claims when we brought the claims which was within the statute of repose the original complaint brought certain claims against certain defendants the st amended complaint which was also within the statute of repose brought all of the claims against all of the defendant so the st amended complaint is when we brought all of the claims at issue here and as mentioned that was in within the statute of repose somewhat all i'm asking is are you i'm sorry i'm not sure i understand your question well i can try to answer but i'm not sure i understand if your rule you are relating back to the st amended complaint yes  i'm good yes and judge kane held that the rd amended complaint asserts the same claims against the same parties as the st amended complaint of course the nd amended complaint also related they found it on the same statute or the same section of an offering document well for one that wasn't actually raised in this appeal and in the interest of full disclosure i will tell you that in the district court below there's a motion to dismiss pending where the defendants have made those arguments they've made the argument to judge can that well this particular alleged false statement that we quote in the rd amended complaint hadn't been quoted earlier and so therefore that should be precluded judge can't hasn't ruled on those issues yet and the issue presented in this court and briefed in this court is really a pure legal issue so while this court may have jurisdiction to decide that i would suggest that it would be best to let judge can decide the particular issues below before that that becomes an issue here  know what the statute of repose says is that an action can be brought within this this time period and again we fully complied with that there was no no failure to comply with the statute  there any is there any is there any circumstance in which the statute of repose would not act as a complete or absolute bar to amendment well the circumstances here i would suggest the statute of repose is not far to a medical if we that's only if we determine that the statute of repose isn't applicable actually i believe the statute repose to bring an action that's it it doesn't say what constitutes bringing an action that's wall three of the federal rules of civil procedure it also doesn't say what constitutes an end to an action that's rule fifty four  of the rules of civil presented there's this strangeness because the text of the statute refers to breaking an action and yet the stature post case law focuses on the claim right it's not it's not enough that the action is in the door you can't use that is that the foot in the door to get everything else in so you've got this non textual requirement that we look more specifically at what's been brought than just hey there's an conclusion which is this rd amended complaint brought the same claim as the st amended complaint now your honor is getting it a distinction that in this case makes no difference it doesn't matter whether you're talking about the action the cause of action the private right of action the claim the claim would be that the narrowest of those things and here the judge said it's the same claim and in fact what we're talking about just to get into the granular details of a tiny bit the st amended complaint allege that the company had internal control failures which resulted in false financial statements and other material misleading statements in its as he filings judge kane said you've adequately alleged those internal control failures beginning nd quarter two thousand and ten and going forward to the end of the class period but she said you haven't given me enough facts to show that those internal control failures existed in the st quarter of two thousand and ten including literally just days before the nd quarter began at the end of march when they conducted this offer so so we've alleged that they had these internal control figures there in the entire time she said you just didn't give me enough facts to to raise an inference that they actually existed just days before so the defendants here knew that st of all the the dismissal order was not final and could be modified at any time they knew that the claims going forward were based on what i should say is the because of action the statutory claims going forward were based on the exact same facts as the ones that had been dismissed the difference was a matter of days in the facts that discovery was about to begin that we are entitled to seek leave to him and they had no judgment and then in those situations in that particular situation there was no reasonable expectation of repose much less a vested right of repose it simply just did not exist i believe i thought over my rebuttal thank you your honor briefly mike mike friend of the other side says that we're trying to create a loophole here it's respectfully the other way around the statutes that we're talking about extinguish claims once the statutory then the rd which essentially parrots the nd why would that also not relate back to the st because it's on the back of the nd the difference your honor is that there was no backend put on it by the district court order is missing of it would it be unusual for discovery to occur and the party learns more about the goings on with regard to the fraud and then re re plea and in that circumstance would your position be the same yes you're right in fact we do have exchange at claims here that are at issue on this appeal i would say that this raises a point i was intending to make which is that the implications of the rule the plaintiff is sponsoring only focus on the data claims brought not the claims and i think that's respectfully backwards the supreme court and this court have made clear over and over again that will test matches a riposte are focused on is bringing an end to an interminable threat of liability on behalf of the there's nothing stopping these players from coming back and forth sixty seven time it just isn't ending now the arguments been made by the other side that we have discretionary option one hundred and fifteen to oppose amendments where we could see a fifty four b certification and for for not only being with us today but for your briefing i would ask that a transcript repair be prepared of this or argument that will split the cost again a pleasure having you with us