i understand that everyone is here except for one lawyer on the th case hopefully that lawyer shows up in the meantime we will proceed grateful to have the judge angle my of the s o the plaintiffs allege that they directly relied on the statements that issue in this case statements that the district court dismissed as non actionable statements or opinion statements that were not adequately plaid as f false the reason is that at the time those statements were made as they laid admitted in the bankruptcy proceeding they had been a breach of the co chair agreement all the way back to february of two thousand and fifty what do you mean by in you mean they weren't actually flying the plans that were permitted to fly right well it is that what you mean yes or no we mean you can explain but i want to know the answer to the question is didn't everyone know that in addition to that in addition to the fact that everyone knew that they weren't flying the flights that they said they would fly they hadn't gotten permission to do that from the co chair partners and that's the critical distinction and where where is the allegation that as of the time that the statement was made in other words you have alleged quite clearly delta had rebuffed certain proposals as late as april on the other hand as i read paragraph sixty three of the complaint it says that due to republicans billiard to perform delta was left with no other choice but to significantly reduce the this morning hours so apparently at some point you agree delta did agree to reduce my hours well but the point there is not that in the way that we planned that and this is what delta had alleg into the modification that republicans you know that may or may not but that's a legal question is not why i think it's a factual question because the statements that defendants were making at that at this time was that they were getting support they were grateful for the support cooperation that they received from the co chair partners but that was not that was not the case you can't interpret a loop you mediation up for a quest to modify the terms of the contract in january in april and then again in august as the airlines acquiescing issue that's a separate claim that judge kaplan identified which is the factual issue of whether or not there had been a quote unquote agreement with the partners but you seem to be focusing your claim on the litigation assessment if you will the statements about whether or not there was a breach judge kaplan his in his view of whether or not there was a breach was whether it's a legal question the company believes in saying that we're not in br belief in that context and you expect a company to say oh yeah we're in breach when there's when there's litigation or impending litigation well the question is the question is can is it it for a reason when can reason why investor take from there may be many defenses even maybe not meeting the requirement of hours dick there may be other defenses not necessary legally a breach so and this is interesting how defendants have played this particular concept both ways in the bankruptcy proceeding which is the admission that we were in breach of the agreements going back to february th in defendants want to say that well that was an admission of legal i believe that was and of that's kind of similar to the way the plaintiffs in one of the bankruptcy court to reject the settlement because there wasn't even a good paper claim by delta that was worth settling but then now here you take the other position that's what happens in litigation and maybe that's a reason to say they're liable i suppose but let's not have pots accusing channels of things well i think it goes back to what is a reason when best to understand by a company making the representation that we are not a bridge the representation is that we are complying with arguments or that we've gotten permission to try to modify the loan again or that we're not complying but there may be legally available and i mean we may be hearing in future months and years about the concept of force majeure that's a defense that was articulated here it was as yet resolved it was led by the public in the litigation why can't the public say for better or worse this is a defense we are articulating and therefore yes it's true we haven't performed but the performances excuse it goes back to what would what statement should have accompanied that representation i think if the republicans said we are we are not performing under these agreements we haven't gotten permission to do so but we believe we have viable defenses and so therefore i don't believe we're  theory were not planted in the alternative now when they proposed a medical plan we didn't we didn't disavow it we didn't disclaim it but what we did was we responded to defendants arguments in the original complaint that we were required to complete a dura based last see in the records there's no indication of how much money if any delta actually recovered it would be entitled to its pro rata share resources of republics compared to other before proceeding to argument i just want to remind the court that in the trial court before judge kaplan four outside directors were also named as defendants judge kaplan dismissed those four in footnotes think go to the core of why judge kaplan should be affirmed it is beyond dispute that during two thousand and fifteen to two thousand and sixteen public repeatedly disclosed to its investors including what my friend characterizes as institutional investors but who in fact are colloquially referred to as vulture funds that tend to buy when there is an opportunity in a distressed company and it is therefore not surprising that not only as judge lynch acknowledged one of them bought after republic declared bankruptcy but they started buying in july of two thousand and fifteen when republic publicly disclosed that they had hired a restructuring advisor and that they were withdrawing their guidance their financial guidance and yes or no your honor excuse me they were not the purchases began after the july press release announcing that guidance had been recent one statement here then appears more factual perhaps than the others is that republics partners had agreed to reduce flights putting aside the existence of a disclosure and eager to hear what you have to say about that why isn't that at least fairly pled to be factually incorrect statement meaning something blue tional as opposed because as mr bedford said we believe we have and there's a little bit of if you read the press release in the record there's a little bit of garbled language but we have the support is in the context of a libra and so i think fairly read that statement is part and parcel of the opinion and hence you know that i understand the importance of earnings calls on the communication with analysts in the market at the same time i think i share with you plus that in your view it's a little hard to interpret these things literally when questions are asked that are let's just say not the way a good lawyer would ask them in a deposition and answers are given that are sort of oblique to the question so hard to figure out what's meant but there's a one to ten q and it says we have agreed with the code sometime in april that was not true so what what are we to make of that that's a formal statement i don't see any we believe at least in the immediate context of that and it's a factual statement it's not about we think they're complaint it is plausible at least sense that that is false judge lynch the facts alleged in the complaint if anything concede in paragraph in january and february or in march or in april that they had the support of the code share partners for an agreement the st time that disclosure was made was in may there are no factual allegations in the complaint to suggest that that was untrue as of may i don't believe that there is any suggestion from counsel that that statement was speaking at an earlier point in time what he seems to be saying is in january they said no in april they said no in may and conceded in power aggressive three they said yes and why that's relevant here is dictated not only by this court's decision in express scripts a panel on which judge genset that my friend mr musavi argued but also judge angle myer's opinion in the xerox case the reason for that is there is simply no obligation to disclose that to and fro of contractual negotiations in this court and in fact in express scripts the facts were much more than they are in this situation because in express scripts there were negotiations between express scripts and them over a contract in which anthem was taking the position that expressed that their contract was not being acted on in good faith there were terrified things going on behind the scenes in negotiations express scripts disclosed that the parties were negotiating this court specifically said and again it's also illustrated by  judge engle meyer and oklahoma firefighters abuse iraq's case there is no duty to disclose the to and fro council would love to know everything that was going on in the negotiating room i understand that but the law does not require that and therefore if you to clarify things that make sure i understand it you said that neither of these plaintiffs purchased any shares after the statement if your honor of the point were making that these were not dave's in the us and they fully understood what was going on but since this is an actual reliance case and not a fraud on the market class action these are two institutional investors we did not make that argument but i think this court can take judicial notice of when they bought and what was said and what flows from the last position and yes please one of your arguments it appears to value of refinancing what why is that snow and why is that not the sort of thing as to which discovery would be appropriate given the different statements all over the lot that as to how the sum total seems to be character  judging a liar the len tell decision of this court specifically requires that there be some disentanglement like that in the bankruptcy court and in the district court before judge forrest it was absolutely no evidence whatsoever submitted by these two vulture funds when they were trying to get the bankruptcy court and the district court to prevent the settlement from occurring so that is judge far as noted in her it's not in the record judge and it but i think our point is slightly different as well our point the principle point is the one the judge kapl finish the point was that judge kaplan accepted and which judge forest and judge lane both noted which is that the central premise of the last causation point in the original complaint is that the plaintiffs equity was completely wiped out by virtue of these seven and that but for the settlements that would not have occurred our principal argument which judge kaplan accepted is that there was a complete  any facts alleged in the complaint to demonstrate that in fact was the case as judge far as noted in the bankruptcy court there was nothing before her or before judge lane to suggest that they weren't wiped for them the equity your honor there was no nothing left but their burden was to allege facts to demonstrate that but for these settlements which were allegedly the product of fraudulent non disclosure they would have gotten something they've affirmatively the record is clear before judge lane and before judge forrest the two vulture funds affirmatively refused to put evidence before the court on that issue and i think  vultures are very useful critters in the world and they get a bad rap but i don't think a label is what matters i think you might be better off sticking to the factual record of when they purchased and what was known in the market when they purchased because i don't know that there is any allegation in the complaint which is all that we have as to what these funds do as a general practice or whether they proclaim themselves to be vultures or are eagles or wasn't an ability to go through it and parse senshi what was attributable to the bleach as opposed to what was attributable in back of your record is under seal by a large so we can't rely on facts unless they become public and that's why you know some settlements the equity holders would have gotten anything out of the fact of the matter is that there was no equity all the equity was extinguished and the sum total of the claims that were allowed to the airlines was in excess of six hundred and thirty five from from the record that's available to us and this is an expert issue we recognize that this is an issue that would be developed after discovering a separate issue it was just an issue of what was the debts that were claimed in the bankruptcy court by other creditors and did and up to less than the assets of republican the settlements were excluded and our allegation is that the sum total of the airline the allowed claims for the airline no no no no no no you don't have my question don't you don't have what they are saying is that you have not alleged that you would not have been equally wiped out even absent these settlements so the question if  that's a legitimate argument and maybe you're going to say it isn't landis then that would have that's a legitimate argument of a loss causation it should be a simple matter to be able to allege that the other creditors amounted to ninety cents and this whole bankruptcy was brought about just by or whatever the least the other creditors claims amounted to less then as sets of republic that should be a simple thing to allege of it's true if if those if those particular facts as to what the ledger was with respect to each of the allowed claims was available but i think at this stage at the pleading stage it's it should be sufficient for us to allege and then ultimately have the burden of it but when they declare bankruptcy