provides for a mechanism to calculate decision very damages after you've disposed of the security now before i get too far into the law i want to just briefly discuss the facts of this case because i think the factual background is pretty complicated but the facts rolled into this appeal are pretty straight for the plaintiffs my clients are twelve individual investors and three pension plans they hired the defendants mirallas in his company commonwealth as their investment advisor had discretionary authority over my clients investments in a commonwealth specializing mortgage backed securities which is a particularly kind of opaque security it's not widely traded it's very hard for investors to value these  so the primary allegation in this case is that the defendants misrepresented the price or the net asset value of these funds to the plans at the point of sale when they sold those funds to the point because moral didn't want to admit to investors the funds had lost significant but essentially he charges a thousand dollars a share for something that was worth a lot less than a thousand dollars a share and if you told us the true value we never would have bought these things in the first now he accomplished this fraud for several mechanism that's why the complaint in this case is very long as we're laying out the whole fraudulent scheme but the effect of that scheme on the plaintiffs is really simple we purchased the shares overpaid for their interest at the point of saying i make sure i understand what you read on the other side is saying in the brief at least will see what he says appearing that they're not investment advisors but that's not the role that the i would say that's simply incorrect i think that the if you look at the allegation or investment contracts entered between at least some of your clients and has ended there were specific investment contracts that were introduced i think one of them is cited in the brief for everybody but for some of the point of the i'll be honest i was going to was of specifically look to the dogs i believe they all likely had investment contracts i know that several of them were submitted in evidence and as to the pension funds responsibility of prudently invest the assets of the pension fund so i don't i think if if there's a factual dispute here about whether they were our investment advisors i simply don't understand that dispute at all there was an investment advisory contract between my clients that's certainly in our obligations and i think another kind of important point to understand this to find a little factual import here is that these shares of these funds these are not publicly traded securities we didn't buy these from just anonymous people through the market these are shares we had to buy directly from the fans and what that means is that when we overpaid for the shares that means the fine received more for those shares than those shares will work materially participated in the sale that in titles us to rescission ery damages as defined in that section i think you already read it lines and the picture since you got rid of the shares because if you take a look at the way that that's defined in section fifty one seven fourteen specifically provides that you can obtain rescission ery damages which is the difference between what you paid for the shares and what you received the fair market value of them when you disposed of the same shares so even once you case an investment advisor owes a fiduciary duty to his client not to make material misrepresentations in connection with the sale of securities because our investment advisor misrepresented the price to us that was a breach of that for the jury duty and we're entitled to the damages from that the fraud which was the act of the conduct of rolls of commerce here it would have had the effect of also harming the fox i don't think we have i think there is a loose language in our complaint where we say both that we are seeking the damages from being induced to make and to hold the securities but if you look at our complaint we're specifically bringing a state securities law of violations that's a claim that can only be brought at the point of sale transaction the state securities act if you look at it says it's illegal to sell or offer to sell that's the claim we've had throughout the entire case and that's a claim that can only be about what happened at the point of sale and that's been our complaint shirton you making other kinds that after the point of sale there was mismanagement that further devalued the value i think i'm not specifically making that claim because my damages are set at the point of sale but if there is further damages after the point of sale they are responsible as it is for the well because of the way recessionary damages are calculated they're liable for the difference between what we pay and the fair value at the time we dispose of it and if the security further decreases in value based on that method of calculating the damage you don't have to prove that they cause the further d sale what we paid for it might is what we eventually received for it right now you're just sitting standing right what right now you're just seeking standing correct right now i'm just thinking the ability to assert the claim whether i can print that is what your claim is because i i thought there were some of the other in there i thought there were two categories of crime apparently not no i think i'm just seeking the recessionary damages and that's the damages model we presented well because this case we were on the verge of trial we had a pretrial order you could look at the and citigroup seems to say me we overwrote into lee and let's let's tell you better what we really had in mind one of my concerns is citigroup comes into this case pretty late and was raised by you later than perhaps it appeal because although i think citi group came out shortly before we briefed our motion for partial summary judgment we didn't catch it in time to put in a motion for summary does my think it came out the fall that motion around july twenty sixth teen of june twenty sixth when it came out i want to say within the month before that so we did not bring the case of the district court's attention but we certainly made the argument that truly shouldn't be applied to these kind of fraudulent disney claims we certainly made the argument that lots of courts under tooley had looked at progeny inducement claims we those in our brief here and held that those claims are direct claims and i think citigroup clarified that totally doesn't apply to these kind of claims so i think citigroup changed the law in a kind of retroactive way i think it just made it clear that we're talking about that my concern about the way this has been presented and you're not backing off of it and it seems to be the only ways been present in district court is that it's a matter of standing it seems to me that the injury that's been alleged here  caused by so the claim is going to the actions of the defendant it's sufficient to to give you standing and the real issue here is not one of standing but is is there a claim is there a action this is the twenty six case not to everyone can and i'm not saying that the way it would it would simplify your case in a while but want to see this is standing that the same factual issues that go into whether this is whether your clients have been injured or not go into the factual determination of whether there is a cause of action as well the case will generally is that when you're looking at the same facts what the cause of action is your four whether standing or not we will to different direction than that i want you to and you can pick up on if you feel that just a way to go all i'm saying is it seems to me standing exists in this case will it have arguably and we need to resolve that and a lot simpler fashion and the parties have been presenting it it's not a matter of delaware law on how to figure out what to plea means and whatever else is your basic allegations in the complaint regarding the injury and the actions of the defendant and whether that actually amounts to anything or not is a marriage question direct your arm that's what we're looking for is the opportunity to present those claims on the merits and we you know there's not been the terminations this case one where the other whether we're going to succeed on these claims i think we've played enough that we should be able to go forward with them and that's why the standing decision was so perplexing to us because it seems to us a good idea which presented though didn't both sides are going to judge brady this is a matter of standing while we argued it because judge brady had dismissed their claims against the third party as to stand august the commonwealth and we were preparing for trial they had an outstanding defense of standing and we were in the midst of preparing all of our evidence and depositions and everything we would literally prepared a pretrial order it's one hundred some pages long and we were going through all this expense we said let's not do this if we're going to lose this understanding so we brought the issue in front of braiding we said we clearly have standing to sue our investment adviser we just want to get that defense out of the ways we can have a trial and what we got was a dismiss he didn't he didn't analyze the kind of things you would analyze for cause of action he's concerned about double liability or double recovery which out of time but perhaps i can address on rebuttal those are that you know double liability is not something you think about when you're thinking about a cause of action if they're liable both to us and to the other side it seems to me would that be to the twelve the six standard i go forward on the merits then it becomes a standing issue so i think that the he simply didn't make the kind of findings you would expect to mak a twenty six case and for that reason i think we would easily survive two of the six of if that analysis were performed i think in the brief at the very beginning we outline you know why we feel like we've presented not just to sue on behalf of the for my clients and supply others who had a lot more money than my clients to collect for the benefit pro rata of all of the advice this is this case is very plate of seer were given the option to be part of that litigation trust or go off on their own and pursue their individual claims against the biggest keep  well as to  to misrepresent the financial state of affairs of the five those are both elements of the funds cause of action against my so to a large degree maybe not one percent to eight substantial green you're talking about people who've already had their money it sitting in a in a checking account somewhere bank account and then mr securities and over time the values went down the representations about what the value were starting to come out and then you have a series of detail described in detail transaction whereby the value was further diminished the fraud concerning what the  claim against companies that had the most money in the past get themselves a priority position these are these people who in good faith included the fourteen so now they were writing both the worse is out of the bankruptcy they've jumped back and forth how they jumped off of the farms course and now they want to pursue their own and get subtle with the fourteen somehow they require the consent of the funds and these fourteen had to their claims to the sun so they wouldn't get any more money out of the fire happened that happened when the funds were not in this case this appeal happened because you know the two of them arm and the funds came back out of bankruptcy and i don't believe anything that happened in the bankruptcy affected our ability to assert these claims certainly that wasn't what judge brady found it is true that these funds were put into bankruptcy that we re prostitute refines came out of bankruptcy and when they came out of bankruptcy the funds a sort of a claim directly against commonwealth advisors as their manager that's the other companion case but our case is separate from the how it was filed before the bankruptcy it's survived the louisiana law under fifty one seven fourteen if you take a look at the statute it defines it differently so it doesn't ask you to prove the value on the day it's the value of the time you dispose of it but i think that gets to an important point which is that at the point of sale our clients over paid for these posing counsel made a point about sales happened at different times well all of the information is in the record the exact date of every one of our purchases and many of our people somebody one of the pension funds put in twelve million dollars in june two thousand and there's no question these funds are worth a fraction of that at the time he didn't you just figure out what the fund actually were on that date and then you get a differential and then you subtract from that what you actually got when you sell the front without regard to any clearly is in the memos i'm reading there are such crimes we had to put in the evidence other twenty nine days to show that there's a fraud he makes a point about stanley young but we have to put in the evidence that stoning younger committed a fraud there are a lot of allegations of th case that are meant to show this was a fraud last night about stuff that happened after the sale there is some stuff that goes beyond i think the last sale if you take a look is june two thousand and eight i should confirm that but there may have been one sale after that but there is most of the conduct that is described her complaint is prior to the last sale in june of two thousand and eight there is some conduct after that that i think reflects back on the fact that what happened before june two thousand and eight was fraudulent and that's the evidence we have to put in if we didn't put in all those allegations about how they were acting as managers of the funds about how the fraud happened we did get dismissed under the theory that we hadn't played enough detail of the fraud that's where complain is so long but i think the claims are very straightforward if you look at the state securit law violation that's a claim that's a point of sale violation and this is kind of an important point about the difference between our claims and their claim to take a look at the complaints they're very different lax or quite plains about half their length it's got about half as many paragraphs but our specific state securities violation claim it talks about the fraud in connection with inducing us to make purchases they have a state securities violation claim where they're complaining about transactions that the fund took who is that they have the funds in their separate complaint they have a complaint where they complain about transactions between the fines and other fines or transactions from the fines and third parties like stoning young birds they're complaining about different transactions the work i'm playing about we're complaining about the transactions it's pacifically hurt us personally where we have the personal client i would submit if you look at tuli in citi group those are claims where we have standing to bring them and so with that i'm out of time unless there are for it to be clear