good morning may it please the court myself and my co counsel mister jason gram's who has already argued for the court previously today have the pleasure of representing mister russell knowles who was the pla f in this this matter which is a state law class action involving breach of contract and negligence t d ameritrade in performing its functions as an investment adviser and management of a discretionary investment account and making certain trades that were required to be made in mister knowles account in that capacity the lower court was confronted with a motion to dismiss under rule twelve b six and unfortunately did not employ the proper standard in evaluating a ruling upon that motion as the court is aware the lower court as well as this court and in a denial of the review is required to accept as true the allegations of the complaint and they need only state a plausible claim for relief unfortunately the lower court and gauged in a fact finding expedition at the pleading stage and resolve completing claims of what contract terms in these documents how they should be interpreted and what they mean the nd amended complaint which was the operative complaint contains no allegations at all any kind of deceptive contract conduct any misrepresentation or omission and this alleged because we have no knowledge of any such conduct not alleged because we have no such knowledge of any such conduct actually occurred so it so the plaintiff mister knowles didn't allege any deceptive conduct he's not aware of any that happened and it's no and so in a situation like what occurred here if you're in the u s stock clientele then your account suffered a loss in value t d ameritrade has this tax loss harvesting feature where if you choose to take advantage of it you can have them automatically law to identify losses meeting or exceeding a specified loss threshold and here's the key if the threshold is met that tax law will be sold to replace the sold security we will buy shares of replacement security it is closely here because the heart of the dispute is they don't disagree that they had to buy shares of a replacement security the issue as the time a performance of that obligation and essentially they are now and they advanced for the lower court and they advance before this court kind of a ludicrous interpretation of that requirement and the contract also seems to me there's two sides of the coin here and two ways to look at well one could look at it as a contract interpretation  there is no admission they gave in to buy the shares is very concrete and unequivocal if there's any ambiguity in the contract it's on the timing of when that repurchase must occur it's very clear that they have to repurchase shares and in the context of the other provisions of the contract which the contract has to be looked at as a whole if you can't look at this is the key provision but it has to be reviewed in the context of other promises contained in the account documents so these and the assets held in this type of account are agreed to be invested in a certain way and certain types of investments only a certain portion of the assets held in cash and here the failure to interpretation of the language i don't hesitate and i kind of hesitate to say it's even a good faith dispute because it's only a dispute at all because they're advancing some absurd interpretations of how that language could be interpreted in order to excuse what they did here here that would then infer a reasonable time and is a reasonable time a question that the court can decide is a question of law oh or is it a question of fact it must be determined by the old finder of fact it is a question of fact it has to be determined by the ultimate finder of fact and that the lower court erred and making that chill determination on its own and or it's conceivable that they acted quickly enough that no reasonable finder of fact could find that it was an unreasonable the way ray but you're saying in the facts present in this case before this judge there's a jury question on the issue reasonable ones there is a jury question at a minimum if not their actions being so unreasonable but the jury could find in their favor  waited eighteen days to execute a trade that needed to occur immediately but certainly it's at a minimum a jury question well what about the disclaimer that in the next sentence the t d ameritrade does not represent  guarantee the objectives of the future will be met the ultimate disclaimer what about they're saying that it wipes out anything else we've ever said about this well that they of course never have relied upon that and what they're attempting to do is have the court misunderstand that language and hope that it lets them off the hook for the tax loss harvesting as we've discussed in our brief as something has to be done in a way that doesn't violate the wash sale rule that the i r s has to wash the rules fairly complicated i've learned more about it in the course of this case but one of the things that's important is that they don't look at just the transactions that you make in this rule might prevent you from being able to claim this on your taxes but as far as what they're going to do their obligations and what they're going to perform is very concrete and definite they're going to keep an eye on your account when your investments drops five percent they're going to sell it for you and they're going to mediately by a comparable security in your account to replace it so you're still invested in the same type of investments and you might be able to get some tax benefit pending on the other activities that you've engaged in as an investor will the world immediately  we that is the word immediately is not there as we've been discussing the time for performance of this repurchase obligation is something that the court might have to interpret as being a reasonable time under the circumstances but when you're talking about changes in the stock market and changes in stock prices you need to move pretty quickly so we called it when we characterized it in the complaint as contemporaneously but it needs to be done right away or else the market could move bat you do have a contractual obligation to buy shares of replacement security right that's a plain little contract agreement that is correct but that really is not the essence of the the arguments or the allegations  them that if we were to place a sale for tax purposes if we did not immediately purchase a replacement security on their funds that passion they were subject to market risk essentially or subject to not in the uptake in the market and that that's really the essence of everything they're saying here and that is we didn't disclose that to them and we should have well now sure so you say you bought shares some time and even if it was operated exactly as we said it would the purpose of the types of harvesting feature was to sell a security at a loss so that they could pass that lost against capital gains as i stated we did that they are not alleging that they did not to run evil to rude or insistent but is there any other section like this six that helps us i know you keep referring to the structure of the agreement it's got several pages here in front of me twenty pages or something like that might be more of that where the plaintiffs are essentially rewriting the contract because the contract does not require that there be any specific percentage in cash for any long period of time there is a dental target a one to three percent the aims adjustments and so what the pigeons are arguing is the reason they believe there should be a contemporaneous purchase is to keep this one to three percent target in cash and they allege that to be in fact i think in their briefing they say it's an undisputed contractual obligation and it isn't undisputed it is not a contractual obligation there is only a general reference to that hash the one to three percent and it's the that may vary from time to time  thirty five percent do they plead that thirty five percent was in cash for a while they didn't play that for a great how long they played how long it was in case they do for eating days thank  sale was a replacement security that was not purchased right away and those funds that is the ground and that is the substance of their claims they are completely unable to point to any contractual provision or any other really that we submit exists here that would suggest that this could be a pure breach of contract with him it simply is not it is a claim based exclusively on misrepresentations or mission alleged by the plant and this is clear as well by looking at the independent tort claim can exist where the alleged judy that is breached arises solely from the contractual relationship between the parties and that's exactly the case we have here the only reason there is any kind of relationship between the thank you judge these are a lot of very dense link the contract documents so i think it's important that i draw the court's attention to in addition to the tax loss harvesting provision to exactly where some of the other key language located that needs to be reading conjunction with the tax loss harvesting stuff that we've already talked about and it's on page one hundred and eighty nine dollars of the joint appendix it's part of the t d ameritrade service agreement and there paragraph on that page that has a bold heading strategy assets and it talks about what types of investments are going to be done in these accounts the count is going to be allocated exclusively among the exchange of the domestic at would be international equity emerging markets domestic and international fixed income classes so that's the only thing that this money can be invested in under the terms of the contract well that's a supplement but cash go ahead you're going to go with the exception and account so that's the problem here is after they sold mister knowles stock that he killed and they waited eighteen days to buy the replacement which they were obligated to do for that eighteen day period his assets weren't invested as they contracted for them to be he was not invested in the u s stock market at all stars they make the amount they pay some very small amount on cash  don't know but i bet you do but it's a very small amount per see d that was your problem probably correct about that but the bigger thing is that he's not invested as they agreed and as the account was supposed to be supposed to have a position in the us stock market at all times harvesting provisions you can understand that what occurred here and what we've alleged is clearly a breach of the contractual terms and furthermore it doesn't involve any kind of misrepresentation or omission these contract terms are a very clear  breach of the contract terms by what t d ameritrade did here is very clear and they engaged in a clear breach breach of contract and attorneys have heard the advice if the facts are against you argue the law the law is against you argue the facts the facts and the law are against you pound the table that's what they're doing they're pounding the table and they're hoping that this court really skews their breach of contract because they didn't do what they were supposed to do and entered this transaction for mister knowles and they did the same thing to a lot of their other customers and mister knowles lost a substantial amount of money because of what they did and so did a lot of other people and their only way out is to hope that the court doesn't understand these contracts and somehow throws them a lifeline so  gotten gains or there's nothing of that sort involved in the statue of scenario or alleged and so there's a clear breach of clear contract terms and the lower court decision should be reversed and this case be remanded for