well here the next motion bank of america hold on one moment let the court clear thank you compelling novel and important legal questions which are likely to arise not just in this case but an antitrust benchmark cases prepared pertly pending in the lower courts in in this district second interlocutory review is likely the only mechanism by which the second circuit will be able to address these important issues plaintiff's damages model purports to entitle the class to treble damages of nearly fifty billion dollars which raises the very real risk a settlement despite substantial merits defense we certainly disputed vigorously your honor my client and j p morgan chase are the last two defendants in this case they fought this case vigorously they have not been pursued by any government officials for violations of law that relate to these allegations unlike some of the other banks that have settled so weak we can test this vigorously but i think everyone has to recognize that potential or the claimed damages of fifty billion dollars is something that cannot be ignored we note that in the last three cases in which this court granite rule twenty three f review the stakes were much lower the claims were below a billion dollars in two of them and below five billion in the third so the you know certainly right your honor that there is a substantial risk that this case will never come before the issues will never be presented to this court unless they are presented by by virtue of a twenty three f review given the stakes that are at issue here what we've done in the record that there would be a settlement in this amount or that your client could not afford to settle in this amount to mean i understand that it's a very high figure indeed but some commercial enterprises have settled that surprisingly large figures in any number of cases recently i think that's exactly the point your honor which is precisely why these issues may never come to your your honesty tensions in you know just being able to address issues if the parties think it's in their interests to settlement your suggestion is somehow that there's you know almost a knife being held throughout to settle here and that's different from what will call a routine settlement between parties which would not be  grounds to get it to lockey tory appeal certainly around and i think this court in the head to see decision has recognised that especially in large family trust cases there's a hydraulic pressure to settle when a class is certified and again that could prevent the court from addressing the important issues that are he raised in this case and if i could turn to them just briefly your honor the first of those issues is the fact of the district court conflated the issues of antitrust injury with damages this court in the court as decision in the sykes decision and others has made very clear that there is a comportment distinction between those two issues what the district court held here in a very novel decision was that if this case were litigated rather than settled that issue would come before the court it very well may find the following a final judgment your honor has many times we will grant it when the issue will dissolve and disappear but that's not this case so it really all turns on the settlement but i think there are two prongs of the of the pursuing tomo analysis there's one prong that goes to whether it is a death knell issue and the second one is just whether there is an important issue that's raised and i think there that's an independent reason for review here there are multiple other cases and even if it would be reviewable after judgment i don't think so what am i missing but again because there are multiple other cases pending in the courts that what were these precise issues will be raised your honor and i think would be important for the court to address those it would again there are multiple cases classification motions pending in the southern district right now where the precisely same issues are raised as are raised here and it's important for the court to give guidance that's why we have rule twenty three f thank you themselves do not even say in their briefs and you didn't hear just now that this will force them to settle it say it could it put some pressure on them these are two of the biggest financial institutions in the world they also rely on the  is important to notice is that seven years on the district court is still considering the adequacy of the pleadings so don't cry too much for the banks they've got plenty of further opportunities on the merits there are more than a dozen defendants who are on appeal to this court that have not settled as well and this is hardly the last of the only time the court will have an opportunity to review questions that are raised and let's get to the questions sumitomo they have to prove that there's a substantial question at least or one that is of compelling importance and there isn't one and that's because judge buchwald was very careful in making alternative findings she concluded is right there will be no individual ised issues having to do with knitting and absorption it can be proved on a class wide basis that's number one the alternative finding was say there right say it is an damages amount to the same question in this case if the banks are right then it doesn't add anything to the predominance analysis and it's abundantly clear in this court and other courts that individualized issues  damages don't prevent pre dominant so the judge buchwald very carefully made findings after thorough and just three hundred sixty six page opinion your honour's she concluded that predominant still would apply this court at least three times including in a case that judge sakhi wrote the opinion and the court is financial services case against a g edwards there was an issue about you said well let me read it to your honor when we find it in courtis financial services the quote this is your honor i'm quoting you the question of injury in fact which in this case is equivalent to whether a particular plaintiff would have paid more in that case was a i p o fees for doing in the but for world may not be common we do not discount the possibility that the individual questions raised by injury in fact might then predominate over the several common questions perhaps a trial would focus largely on what particular planets would have paid in the butt for world but that is not necessarily so under these circumstances the predominate question too is best left to the sound discretion of the district court and remain so your honour's declined to rule against to take that issue up because the district court could own remain and do exactly what judge buchwald has already done the petrobras case is also on the banks contin that if it relates to liability then necessarily individual questions predominates not so that's not so in the courtis case it was not so in the have a see case vs city group where the question was whether you would have to wear the individual class members would have to show reliance couldn't rely on the basic presumption that's a kind of an issue and in petra process it was a threshold question of territory extraterritoriality and this court remained it to judge kaplan and do the predominance analysis and again that is exactly what judge buchwald has already done this is not one of the rare cases that meets the stringent requirements of sumitomo judge b certification order does now and does not sound a death knell for the more than a dozen non settling defendants only two of which are even subject to the certification order it is not substantially question on any issue that is immediate review is unwarranted thank you so just briefly your honor to turn to the issues that were raised by by mr barnett in his presentation but i think the key issue in this case is that the district court took the position that because injury in fact overlaps with damages that that then allows the court to overcome the predominance question even though the court in psychs and elsewhere has held that it's absolutely necessary to demonstrate injury in fact on a class wide basis so i think that's a very novel question we've not seen that issue addressed before it's very likely to arise in all of the other benchmark cases that are currently pending because traditionally it's relatively easy to demonstrate impact in a way that's separate from damages usually impact is a subset of the damages question what judge buchwald concluded here was that because of the nature of the financial instruments that issue impact slash injury and damages were going to overlap significantly and then made the novel judgment that that then allowed her to short circuit the case law that suggests it's  the psychs case for example which says you have to be able to prove impact an injury on a class wide basis that is an important issue that we think the court should address and resolve thank you thank you will reserve decision the remaining motions are on submission