we don't see enough of but we are always glad to see him and we have some cases of the clerk in the case that counsel in each of the cases who signed it and who are prepared to go rainier against the trade financial corporation the precedent that the circuit set in the in re can get case in two thousand and fifteen that the king gate approach is the spouse by the majority of circuits it's also followed by the third and night circuits and affirm of the order below what essentially require this court to abrogate its decision and king gate king gate set out the road map to determine if a complaint alleges misrepresentations emissions or you know opportunities a number of factors the number of steps they need to take they didn't take the steps instead each trade uses a computer system a computer software which automatically routes trades to predetermined trading then use the give each trade the most money in rebates they act for their own best interest and not for their customers to prove this case we're looking at conduct twelve looking at what each trade was supposed to do and didn't not what it said or didn't say and so misrepresentations or omissions are not a predicate to our for you sherry duty claim and we do not have  mission or a representation for an art of this it doesn't matter if it's an element of your claim it's still a bar by the statute that's true and i didn't mean to say that it's an element it's why there regardless whether it's an element whether we need to prove a misrepresentation in order to succeed and we do not under or for do sherry duty claim as alleged now conceivably there can be fiduciaries duty claim that resides on misrepresentation a principle could make representations to the agent the agent is supposed to take action and it didn't and lies about it to prove that for you sheer a duty claim you're going to have to prove representations and  these trades in a way that doesn't benefit you do you mind you know uniquely in this case i don't think that would matter and that's because best execution is is required by law it's not a negotiated term it's not conduct the parties come to an agreement on such can be waived each trade by law has to do best execution so in this case uniquely no it wouldn't matter if they did disclose it they can't waive it  disclose their way out of their legal obligation to to trade their its customers trade in the best venue for its customers and not for the benefit of itself the what your honor just went to is oh most of the it is close to the approach that the seventh circuit recently took in the holts and goldberg case that is a fractured opinion it we have a majority concurrence and a very strong dissent and but that approach would find that every future do sherry duty claim every breach of contract claim is really about the non disclosure because i mean i like the judge hamilton's words resist you don't take a perfectly good breach of contract case for do you share a duty case and by reverse alchemy turn it into a non disclosure case which is what he's doing every obligation is really a non disclosure case because they didn't disclose that they were not living up to their duties it's wrong first because as i said before here you can't disclose your way out of out of the because on each trade it is obligated under the finner regulations to abide by best execution they are a member if in raw and therefore they have agreed to abide by finra rules so they are obligated as a member is not modified because the in connection with as used in doubt it as a supreme court used in doubt it was that the fraud induced securities purchase and the child born court was very clear about that they're saying we're not modifying debit we're not having a definition that we've never used before and dab it in sanford and in every other case where the supreme court considered in connection with its it was in connection with found when the fraud induced the purchase sale of holding of a covered security we don't have that here and the trade as as much as conceded that by arguing very hard that we need to  with relying on friends with was a factor in any of these district court cases around the country which went against you feed wrote was mentioned in all of those cases  determine whether a misrepresentation or an admission or even if you will device is alleged it's not simply in examination of the relevant pleading and that's from the romanow case here in the second circuit and king gate which i think is a more recent statement is the same it doesn't depend on the elements of the claim is the court told us in king gate notwithstanding that the claim asserts liability on the part of the defendant under a state law theory that does not include false conduct as an essential element the claim can still be dismissed and similarly in the romano case the courts that the task of determining whether sluice applies is not limited simply to an examination of the relevant pleadings sus requires a court's attention to both the pleadings and the realities underlying the claims and basically what the standard in the second circuit is is the courts are asking if the claim is going to succeed what does the plaintiff have to prove a trial to demonstrate its claim and here plaintiffs allege the each trade not some third party like in the made off future fund cases but each trade reached their duty so the question under king  allowed each raid discretion and the discretion was that trade goods move trades to particular venues and that you trade ignored that duty through a scheme involving an algorithm to route the trades to the venue that paid them the most money benefiting themselves at the extent of their customers or stated another way ran or alleges that each raid was perpetrating a scheme to defraud rainer by running as trades for each they claim that they state violates figure and as you see rules i don't think there can be any doubt that that's a securities claim on its face and that's been the holding of every court that's address case should be dismissed and why should it be a solution because if if the district courts that have looked at this are right and if the s c c s statement that when the duty of best execution is violated it's a manipulative device what we have here is a manipulative device that is in connection with the trade of a covered security and i don't think there can be any reasonable argument that when the duty of best execution involves literally the trading of securities it's in connection with then you have a covered security you have a covered class action you have a device and you have all the elements  across the country have correctly found that it's both and i think your honor as you pointed out and several of the best execution cases have pointed out when you're talking about a duty of a fiduciary duty oftentimes what you're really talking about is a failure to disclose because the securities laws come with require disclosures and what's being alleged here is on some level that no disclosure was made about that but you can go either way i think i'm not suggesting that it has to be manipulative device weighs the cuts against our opponent actually if you look at these cases this is sort of the second round of the p f o f cases over the years the last rounds were all was all decided on preclusion grounds the federal law preempted the field here you're caught between one of two sides if it's a finger n s e c violation it's obviously a securities claim first but it's also the case that you're asking the state courts to step in and regulate the federal rules and the  which shouldn't happen because it's a very well regulated scheme and numerous state supreme courts have ruled that way so you're sort of caught in a rock and a hard place a little bit if you want to say it's a violation of the securities laws i think clearly it's a securities claim or it's preempted if it's not a violation of the securities laws that you're relying on if it's merely a breach of fiduciary duty i think you're right they haven't pointed to any case saying that's not curable by a disclosure when normally it would be normally the breach of the duty of loyalty can be cured by telling a full and complete disclosure explaining what you're doing me on the stand why and this is the suit question that that is directed to the know but there's a lot of strategic reasons that you would prefer a state law claim doing twenty five  with that thank you with respect to the inconnection requirement best execution is an integrity part of any purchase or sale of a security and you don't need to look any further than rainer's complaint to see that renter describes a purchaser salem's complaint as beginning when a client directs its broker to take a certain action by an order the action is to sell it's to purchase the covered security complaint then goes on to allege the each read studio of best execution is buying and selling stocks clearly in connection with and finally ran or alleges it would be inequitable for each trade to retain the profits benefits and other compensation it obtained through its wrongful acts including the commissions and kickbacks obtained in connection with routing the orders it issues the in connection languages directly from their complaints and the holdings of every single court to address the best execution rule in the context of have held that it is in connection with and that's been true  flipping claims and trying to turn them into non disclosure claims is not appropriate in this case regardless of phdre it's not appropriate to take a perfectly ordinary breach of duty claim and make it a non claims because they didn't execute their fiduciary duties towards the fines they didn't do correct oversight exciter of those claims were not dismissed by king gave the king a court this court did not say oh well these