good morning your honour's my name is sarah i'm appearing on behalf of the parents your own final burger who is the plaintiff in this action the district court pleadings are to be construed to do substantial justice under rule eight after the federal rules of and that has to do with the federal court litigation regarding merrill lynch as research practices there was an end to the proceeding there were dozens of cases filed under the federal securities laws that were transferred to case that are survivable so when judge patel directed us to amend to plead a federal securities law claim she was effectively asking us to commit harry kerry which is the reason why in the first inst he determined that this fact pattern the fact pattern not the failure of the pleading but the fact pattern itself did not fall within a federal securities law claim that is why we determined to when we brought the case claim and we did not plead a fraudulent scheme claim we played a claim premised on merrill lynch's misconduct that harmed not only investors in maryland but more particularly maryland just competitors the investment banking business and merrill lynch just and customers of other investment banking firms who may have been impacted by this conduct we brought the claim under the statute designed to protect the general public because we realized as indicated by these more subsequent decisions that this does not fit within a fraud claim cognize of all under the federal securities laws and i think the decision of the district court in this case to force us into a claim that we never pled we never had any intention of pleading we never made a pretense of attempting to plead such a claim we weren't interested in that claim this claim that we pled is truly more analogous to the claim in green the american trade in the case in which judge bright was on the panel the eighth circuit that directed to remain and it is more analogous to a consumer protection claim and i think the subsequent events dismissal of all these federal claims proves that we are correct and this is ironic  to protect public companies from what were pejoratively characterized as strikes by imposing the more severe pleading requirements of the private securities litigation reform act but here the claim arises out of the findings of the new york attorney general of actual wrongdoing by merrill lynch no one contends that there was no wrongdoing here there clearly was this is not a case where sluice has been vindicated by having us removed and then obviously dismissed as what's going to happen if we were forced to plead the claim there's no policy under seclusive that is worthy of protection here in fact when new york attorney general eliot spitzer announced the settlement giving to the imposition of sanctions in the amount of one hundred million dollars in morgan's merrill lynch he said the reason we're doing that is we're putting the information out in the public domain so private investors can pursue claims happens in it's the reason for having the legislation there in the first place where your honor i don't think under this factual scenario that we should be a victim of that tough luck because i think this is a unique situation statute that has extremely broad application to various types of scenarios in fact those case law that we've cited in our brief that talks about you know the invention i me in mind news reading what we've alleged not there but you are i cannot deny that public reports issued by merrill lynch that were contrary to their internal belief system the true value of the stocks had some impact on the stock price but that's not our case your honor that is not our case and that is the error of the a pelleas in their brief and it's the error of the district court they have unfairly misconstrued our case that slotted into this this little  through litigation all those ancillary effects were simply saying that there was an internal process here that was unfair to the general public unfair to merrill lynch as competitors just unfair to customers in maryland unfair  are absolutely not seeking any kind of measure of damage that arises under the federal securities laws we are not doing that you are what we have pledged is disgorgement of their profit we are not relying on an out of pocket measure the difference between what you paid and what you should have paid had to had a fraud being revealed that is not our case that is not our case your honor our case is they made hundreds and hundreds of millions of dollars in investment banking fees they have only had to pay a fraction of according to what our complaint is and what i started with a substantially fair reading of the pleading to do justice to our pleading can in no way be construed to seek a traditional damage remedy under securities laws under s is purely aquittal in nature and that is the nature of the claim and it is of course you can ferret through these things and try to find isolated words that might support the idea that this is a traditional fraud claim where you're seeking an out of pocket damage remedy such as might arise under sluice or under a common law fraud claim or under a negligent misrepresentation claim but that is wrong to do that that is not the case that was pledged your honor the case that was pled was purely equitable in nature deceptive and misleading research reports that caused injury to class members let me read plaintiff's complaint in the trial court proceedings plaintiff's claim it's typical of those of the class members plaintiffs in the class members purchase stocks for which deceptive and misleading ratings and or research reports were issued last paragraph thirty three paragraph thirty five thirty one defines the class as purchasers of those stocks who were injured thereby i think factually there's no question on this record that this case lines up squarely with the statutory text of supposed to let me let me come back to sort of first principles and of course your honour's are aware this is not the first time that the ninth circuit has addressed sluice so we have two decisions from this court in patching and costly which is essentially taking a extremely broad reading of the three or four ways first they ask you to ignore the fact that there is no statutory basis in the text or any reading that congress intended to exempt from the term damages any fine and that money will go to the california grocery well i would not be fine with that but let me elaborate what korea supply the california supreme court has said is that what plaintiffs are seeking here i think you've conceded this in  fine i would disagree in this respect your honor i believe suit in the congressional intent was clear that is would be an exclusive remedy where as here you have a nationally traded set of securities there's no dispute about that where you have allegations of misrepresentations in connection with the purchase or sale of securities and you have a request for monetary relief in the form of damages judge patel is quite right in holding that e purposes the fact that the ninth circuit decision did not reach that issue is of no moment because that holding of the district court was indeed jurisdictional this court necessarily n connection with requirements as interpreted by the california by the u s supreme court and read into this statute a pretty requirement one reads the reply brief to say as i think this panel should that there is no basis under the plane statutory text read into a site enter requirement it's even if that was so however we believe that the pla of their complaint necessarily purports to allege so i am judge patel in the trial court proceedings found that to be so and that the allegations of deception and manipulative intent smacked of siam for so i don't believe this panel even needs to reach the issue of scienter because it so clearly matches up with the requirements on all other levels or any other are fundamentally wrong to characterize this claim as alleging c enter an intention to defraud that is not what the complaint viewed as a whole fairly read alleges it is absolutely not the ninth circuit authorities cited by counsel do not control this decision because they were distinguished from pat now turned on whether i just heard and knew it was a security was a clear accounting fraud typical of the securities fraud case so they don't control here the