limitations in the action that's before the court brought under section ten b of the securities exchange act i'll give you if i may just one brief moment on what this case is about even though the issues before the court are procedural both of these cases the predecessor litigation in this one were brought by people who were sold deferred variable annuities which are a tax shelter investment by nationwide the defendant here and those people who are sold this tax shelter investment for placement in their tax qualified retirement plans in other words in their iras are there for one case things like that but the plaintiffs claim in this case substantively is that nationwide was under a duty but omitted to disclose to the prospective purchasers that the tax benefit of the deferred annuities the tax shelter benefit was completely unnecessary for someone putting that investment in and i are a one in a for a one k because an ira or a four zero one k it may be a standalone iraq yes but what he went to purchase was some investment for money that could be qualified in a retirement plan he didn't care whether he put it not paying for it at all you get to put the money in there and it's tax deferred right but you need not buy a premium investment that's already tax deferred exactly can put in a tax deferred vehicle that's our point blank or stand the facts here he didn't put it in the tax deferred vehicle what he did your honor it was when your when he went to the nationwide agent he said to the nation like agent i am capable this year of putting a certain amount of money into a tax qualified retirement plan what should i purchase to do this what should i purchase and what the agents told him apparently was a tax qualified standalone plan evil in this your honor and the thing that should have been disclosed to him was that he didn't need to buy anything that had to tax shelter benefits and tax shelter fees in order to obtain the tax shelter benefit because the purpose for which he was there whether it's putting three thousand dollars in an ira or for other class members rolling over money from a previous hiring any of those situations allowed those people regardless of what technical form under the internal revenue code was used to invest that money on a tax deferred basis and buying a tax shelter for that purpose without disclosure that you're paying for something there and who was the plaintiff of course in this action and by the way no one said including nationwide in the ohio case where mr hellman sought to intervene that he wasn't a member of the class that he was seeking to intervene and this is a newly concocted argument but if you look at that definition you can list each and every provision of the internal revenue code that allows any kind of tax qualified retirement plan including same factual allegations and i don't think there's any dispute here your honor that my description of what was omitted according to the complaint in both cases are the same in both cases  say that nationwide was obligated but omitted to disclose to prospective purchasers who were putting these things in a tax qualified plan and that the tax shelter benefit was necessary for them that's the claim i plant thinks that that doesn't make sense for some class or subclass or part of the class here but that's a merits argument it's not a lack of identity between the allegations of the earlier action and the later action and i don't think this court should struggle to find that there's a gap between the two particularly because as as we stated in our brief when mr hellman sought to intervene in the ohio action to help out the the plaintiff there who spoke only spanish and we thought was not probably an ideal class representative standing alone when mr hellman sought to intervene how did nationwide oppose that motion for intervention it didn't say where was this home and he's not a member of the class he can't intervene and what they said was mister hellman should if he wants to participate in a class action here file a subsequent federal class action they said that verbatim twice in their moving papers very very clearly and for them now to come and say vet having done exactly that which is what mr hellman did all of a sudden he's out of court and don't think that the issue of the timing of the claims was not front and center in front of the ohio court when this was being litigated there claims including mr hellman could then pursue a federal class action or an individual action in state or federal court they also said if the proposed new plaintiffs wish to be named plaintiffs in a class action they should file it separately and the ohio court in denying intervention having listened to the argument by nationwide said the proposed plaintiffs would remain eligible to pursue their claims under the federal reflection of the true course of events between these two actions i don't think there's any room for daylight either as a matter of playing substantive law or as a matter of what nationwide specifically s was to come into federal court and file the federal securities claim as a class action that nationwide invited him to do and told the ohio court that he should be required to do rather than be able to continue as an interven and it was an interpreted on appeal to apply to this kind of case what nationwide was bent on doing you know the ohio court was to get it out of the common law fraud context which is what the ohio case was and into what had will try to reserve sometimes and let me talk about a couple of vision other issues briefly one of them is the question as to whether the prior ohio class action can support e in this circuit is completely dispositive on that point of course that was you know bank decision it was rendered over a very vigorous dissent raising the exact same issues that nationwide is seeking to really get here but in this circuit the law is occurring today from my position and happens to favor a follow on class actions as well as individual actions told by earlier actions that involve substantially the same allegations that is what this situation just do what extent is that case limited to the fact that there's an intervening change of law which is somewhat unusual circumstances opposed to the fairly driven by the facts of my case i would agree that the facts of that case were quite unusual given the intervening congressional enactments that changed the law and made the claim sort of change over time but if you look at the policy underlying the reasoning of the court and that is why motivate a litigant in the earlier action to file the second claim prematurely if it turns out not to be necessary why engender that kind of judicial inefficiency that principle applies across the board regardless of the facts of the case the other thing that i would observe quite quite unusually is that in this case as well as that one there has been a great intervening change of law and that is that the initial claims that we had in ohio state court based on fraud particularly different from the situation  i do believe that from the district court's point of view of i agree it looks like the brief was due on monday rather than tuesday well the question is what's the error as a district judge i look at the record record shows when  miscalculated you missed apprehended what happened we had this idea we had whatever whatever none of that's in the record and we can't consider it on appeal so my question is looking looking down on  thought very hard about that your honor and the reason we didn't do it is because number one the district court also ruled the statue of intrusions ground stuff only we did not have any basis for moving for reconsideration on that ground reason for thinking that the situation was otherwise salaam letting you out of your default but that didn't happen here if you didn't give the district judge a shot your honor i think that the consequence of the line of agree that it's not an exhaustion issue of any sort you sure don't have to move to reconsider move for him in the judgement or any of those things in order to appeal but not having done that you are stuck with the record that was before the district court that's my only point in looking at the record that was before the district court i'm questioning how he could have done anything other than conclude what he did well your honor i think just to finish off i think that his function was too severe and we knew from the fact that he doubts nationwide's grief for having too too many pages in it a few weeks before that he was a stickler for those kinds of things and  individual circumstances present a claim and make him an asserted member of that prior class action in ohio state court can you just tell me in english i mean  really really simple words why it is words more or less in the ohio state court class action but that's not the test under the american pyke rule the test is whether or not hellman individually was a number of the prior state court class action and our point is that if you look at the documents incorporated by reference in the complaint in helman's complaint in the arizona district court you see as i think your honour's have already recognized that hellman bought something called an individual retirement annuity which is a stand alone retirement plan that is very different than the class that was just certified in the ohio state court case where the allegation on behalf of that class was that people bought a tax sheltered annuity and put it into a separate tax sheltered retirement plan or account and i can we were defrauded because we bought something that was already tax deferred and it was put into a separate account a separate retirement plan that was tax deferred and therefore we got a double dose of sheltered account in as i understand the classic claim in castillo which is the one we have to refer back to it is that people purchased a tax deferred annuity and used it as an investment to section four zero eight of the internal revenue code and it follows as a separate section a section devoted to something called individual retirement accounts and indeed if you look at publication five ninety of the internal revenue service it talks about the distinction between individual retirement account that is set up for taxable investments to be placed into it that's on the one hand under section four away and under section four zero eight b there's something called an individual retirement annuity an individual retirement and nudity is something as a contract it's issued by an insurance company and it permits the contract holder to invest in pre selected investment options made available through that contract and there's only one form of tax deferral that is granted with respect to the earnings on those investments that is the tax deferral that's provided for by section four zero eight of the internal state court and that class action and the class action and how many circumstances here in the class action in the district of arizona regardless of what homans class definition says his home is individual circumstances we have to look at i think you also have to look at the fact that in this particular case home and came to the ohio state court and he said i want to bring claims as a named representative in ohio and the state court mayor said will entertain that application so it was hellman who was actually seeking the relief in ohio not nationwide as plaintiff has suggested and in response nationwide said how many is too late to come into this and the court went through the analysis under fifteen c in ohio under the ohio procedure rules and decided that in fact homan was required if you wanted to pursue a claim he was required to do so under  federal securities laws in federal court plaintiff has now come into this court and said somehow it nationwide is traditionally a start from seeking the protection of the securities litigation uniform standards act and that's the that can't be right by seeking the protections of the federal securities laws in state court and in protections of we weren't waving our statue of limitations arguments under the federal securities laws in fact we were trying to get hellman into federal board so he would be forced to confront the statue of limitations under the federal securities laws so far from being judicially stopped our position in ohio state court is completely consistent with our position here we took the position in ohio state court that helman should be subject to the federal securities laws in federal court and now that he's here was saying he should be subject to the federal securities laws and particularly the statue limitations on the federal securities laws we think that's dispositive now one of the thing he has similar with the same claims as that ohio state class and he can't do either one when he's not in a sort of member of the class because he didn't take the tax sheltered annuity and use it to fund it retirement plan it was already tax deferred that's number one and two he has really a very different claim because as your honor pointed out he doesn't have a claim about unnecessary tax deferral he's only got one dose of tax deferral so he can't be claiming that there's some non them and there may be a class of people out there your honor who have that claim and if they were here today at helen's table perhaps they'd be able to show that their claim was the same as the one that was asserted in ohio but again if you look at the documents incorporated by reference and hellman's complaint and you look at hellman's individual circumstances he doesn't have that claim he purchased something called an individual retirement annuity which means that he only has a claim that somehow the individual last point on this american pike tolling which is there was some discussion by plaintiffs counsel with respect to how this is all about fairness to mr hellman and the helmet and the american pipe decision and the cases  contract and a prospectus that laid out in tremendous detail the tax deferral features of his annuity as well as the costs and other benefits of that annuity and he understood at the time that he was using order to put it into his retirement plan it was already tax deferred he was clearly on constructive notice at that point that he was using a tax deferred investment to fund a the contract all the tax deferral features of the anybody and if the purchaser was looking to find a retirement plan it was already tax deferred it would have been obvious or at least constructive notice that there was going to be  our position your honor is that there is a serious question as to whether or not a prior state court class action can toll federal cause of action in federal court particularly with those claims that become exactly right when you said the plaintiffs are stuck with a record and there's no record that would support any appeal from the district court's decision here he did not go to the district court and said hey judge you got the facts wrong you counted wron anything like that as i understand it all they're doing is coming in and claiming that there's some that would have all of stoppel on our part based on a bunch of facts that weren't in the district court record even if your honour's were to consider all those facts at this point and make a decision with respect to those facts i want to point out something that perhaps isn't so clear in the papers in the briefs and that is that there's nothing that nationwide said that laid the plaintiffs to believe dismissed i think if you couple that with the fact of the district court called plaintiff's counsel and said where's your brief in opposition and didn't get a call back then the district court certainly was within his discretion missed under those circumstances and that's particularly true with the plaintiffs never came back from the district court and said hey we have some reason not to file on time we had some perfectly legitimate reason the pla were essentially silent during this entire process despite the district court reaching out to them to try and get some answer here as to what was going on so perhaps your honor is right that this is an unusual situation but under the circumstances district court was certainly justified one because the local rule gives him discretion to dismiss if the opposition isn't problem time and number two the local rules quite clear if you want an extension you have to file for an extension you have to do so before the deadline you can't wait until after the deadline and then not respond then just take your appeal that prevents the district court from showing any kind of fairness and all the district court follow the rules and the rules are what ought to apply here  i don't think there's any dispute about what he purchased the question is whether it was covered by the custodial action right and my point here is that clearly the class allegations in the casino actually covered his purchase allegations in the complaint about what was wrong with respect to the class members obviously for action class members depends from this class definition and his point is that for for a the individual retirement annuities there is no duplicate tax benefits and therefore there is no wrong that is an argument on the merits and mr hellman clearly was within the class back in that for which the merits argument would or would not succeed but the threshold issue here for tolling purposes is his whether it's the same class making the same allegations and here it is out all of the problems that we say was of it on his own and i'll point out your honor that there is now a substantial body of federal regulation that requires sellers of who it is to make precisely the