adoption of the narrow price maintenance theory in the court below the district court certified this class based on price maintaining statements involving business principles and conflicts warnings and it's a price maintenance case because there's no allegation that when these statements were made the stock price went up in two cases where this court has addressed price maintenance and that's barclays and the event in their very recent cases the doctrine has been narrowly construed there's a requirement you need to have a price maintaining statement and there needs to be a link between the so called corrective disclosure and the price maintaining statement so what you're saying is correct wouldn't judge wesley and his prior decision we're saying is that in order to apply price maintenance to these facts here in the allegations here we need to look to whether there could be a price maintaining statement so in the barclays case the allegation was that barclays in re made a series of a hoc disclosures in response to questions about whether it was front running in its dark pool and barclay said no and then in the end when the corrective disclosure came in that was the new york state attorney general saying that those statements or false  that was deemed to be a sufficient set of facts to support a price maintenance theory here there are apps there's absolutely no evidence that supports it in fact the district court below did not consider what the statements actually said down materiality issue but we were quite clear the st time you were here in footnote six and the courts have been quite clear regularly in the circuit that you can't revisit materiality so it's not really what you're trying to do m needed to consider last causation evidence shorter and that's why that's why the the types of studies that you do that you measured at the back and you measure that when the disclosures occur you measure as to whether there's a there's a change in the price and so you present an expert evidence on the other side presented expert evidence and the judge like the other side's expert evidence better than yours so is not the end of it because judge probably didn't consider what the actual statements w is is a class why common problem that get that far it twelve b six i understand you don't like losing in the two of the six and you make an argument that if we don't do this that that the floodgates open you list seven and b you're asking us to a man to rule in which we've specifically said materiality is not it and call it something else and i can't see why we should do that i think your honor on your halliburton to the supreme court make clear you can't artificially limit the evidence that should be considered in assessing price maintenance even though last causation which the supreme court held in elements of roe what's the what's your rule mr jefferson what is your rule in terms of loss causation will this is what we're talking about is looking at the statements themselves this court has said ten times the statements are not statements that a reasonable investor would rely upon in the deciding that they're not material yes but this is about reliance yes correct and you can have let me see if i can go back to halliburton to court says quite clearly at page two hundred and eighty three that you can't artificially limit price maintenance evidence statements themselves are evidence that corrective disclosure is evidence and investor rely upon a non material statement i don't believe so no i get the have recovered but can't could an investor rely upon the statement that's not material and they would have a claim but that that separates materiality from reliance does not i think yes i just you could theoretically something but the point here is that if you look at what happened and how important albertan on the supreme court said last causation was a class white issue right not be considered the same argument was made by the plaintiffs to the supreme court and the supreme court said no even though last causation evidence is a class white issue to the extent it's relevant to price impact it needs to be considered the supreme court made quite clear that even though they lost the last causation evidence was highly relevant to the merits you still had to consider it in assessing price impact on a rule you want to rule before you look at the experts you want to rule that says that there are certain types of statements that as a matter of law can cause a loss that sounds so much like materiality to me that i can't i can't separate the cats i don't distinguish between two cans their cats i don't like get help but in any event  the corrections were to those statements and he relied upon an allegation of price maintenance when there was absolutely no evidence to support it the only evidence the other side has and i would ask the court to look at and judge credit in terms of the evidence of your argu clearly erroneous i'm saying is judge crotty did not consider that the actual statements number one he relied upon pure speculation on price maintenance what we're saying is these statements cannot under the nd circuit sound decisions so what i'm asking you i support the notion that these were price maintaining statements the other side's expert only did an event study saying there was avenue returns on three dates that was all the found he did not connect and link up those statements with the weather the the when goldman sachs was issuing these facts was this issuing these statements in the ten case and elsewhere the stock price did not go down correct that's correct but the problem was that if you look at the actual statements which again the other side says well because that's probably found if you're ality and this is it a sixty five he was compelled to presume price maintenance which short circuits the whole house burton to inquire we have to look at the statements the statements are as we as we say warnings and th local conflicts warning is in a ten k with ten pages of warnings about increasing conflicts in bold and they grab one little sentence where they say well you say you have extensive procedures to deal with conflicts well let's look at what the corrective disclosures were the f t c did not say that goldman sachs did not have procedures to deal with conflicts the f c c complaint was about alleged misrepresentation to to a sophisticated c d o investor had nothing to do with statements made to shareholders so there was no connection no link and under this theory that the other side is adopting you just have to assert price maintenance without any evidence that supports it and you're also pointing to the fact that there were disclosures in the press that related to the existence of conflicts that didn't affect the price either yes and it's hard to c complaint doesn't make any reference to the so called price maintaining statements doesn't set a goldman sachs doesn't have extensive procedures to deal with conflicts it talks about a misrepresentation to it was collateral selection manager  the nd corrected disclosure is an announcement of this is a leak of supposedly criminal investigations which never happened in two mortgage trading activity doesn't reference any of the challenge statements and the rd corrected disclosure is about  that was on the front page of the new york times on december th two thousand and nine and it was references in the new york times to government investigations into c d s none of the corrective disclosures relate back to the price maintaining statements and if you look at this court's decision in our pleas again on the corrected this closure date the new york state attorney general sued and said that the price maintaining statements were not true it's hard to see a case where  there is that the there's no connection between the disclosures with that or the statements and the price the price reductions no question as a clearly you have the question your honor we told you that already so  how i have a hard time understanding how this burdensome the burden works on the front side from their standpoint the burden works is when you have to apply the preponderance of the evidence standard and this court has repeatedly said that the preponderance of the evidence standard gives the party that has the burden fifty point one we have a little bit more of the burden on the other side as the other side put forward no evidence at all to support their price means theory the other side's expert essentially just assume other experts said the you didn't you couldn't differentiate between what the what goldman was saying that it was that what goldman was saying was contrary to what was the fact which was ultimately disclosed in the government investigations and complaints and so he said you can't just separate out the fact there's a government now government action it's not just the government action the government action is also something else it's non disclosure of significant compelling conflicts of interest allowing one investor to control the investment strategy that shorts shorts the investment and then selling that investment to the public as if it's a legitimate investment doesn't go back to the price of maintaining statements because all it's alleged in that s appeals is enormous pressure to settle these types of cases and not have them go forward so the problem is that may be the reality in the district court right but it's not my job to eliminate trials my job is to apply the law here so my job is to figure out whether judge credit got it right or not and i guess my problem i keep having with with your argument is that i don't see how you're separating the materiality fight that's lost in the argument you're making now we try one more time halliburton's who said you can't artificially limit the evidence that gets considered in assessing price i completely agree that i don't have the stay but i think we're paying ourselves the same three minutes for a bottle let's hear from that i won there's a summary judgment motion has been pending for months yes and so discovery is over yes and so i guess i'm trying to figure out what's next in this case in actual evidence that supports this application of price means there is no evidence that supports it it's just speculation and the other side says well because it relates to that you have the question is that these are this will be a class determinative issue and that that was true and how burton to of course so it is really important to focus on what the legal standard is here in the question is a very particular one and then is has goldman carried the burden of proof establishing that there was no price impact in price impact is a binary thing it is they're trying to say and trying to establish as a matter of fact that the statements here had no effect the misstatements had no effect on the price and it's a very difficult argument they're trying to make because when the statements happened the corrective disclosures and that's how you look at this in a price maintenance case when they happen the stock went down a lot of way way way ahead of the stock didn't drop a big when newspapers like the times and the variety of reasons st is that these were accompanied in this period by a whole series of goldman denials and i took all of denial as don't make something out non disclosure right and i'll let if i can just get past that st sentence i totally take the point i'm on board with your question i'm going to give you quite detailed answer and that is i think you are the example that you gave to my friend about how when you have someone who's indicted and denies it really is a point in our favor because if you look at articles that say things like goldman is a vampire squid just things about goldman that it's engaged in conflicts the real question is when the government comes along with much more details including the emails from tour and the like about how it is for example that a it was set up with something th market did not know in the paulson transaction it's much more credible and so yes i do think the nile's are are quite important in this context because what happens is the articles describe conflicts conflicts are not a legal complex are not intrinsically bad the question is in fact the market liked the fact that goldman was willing to engage in transactions that other investment banks weren't that raise the prospects of conflicts because goldman had systems for dealing with the conflicts involving very important particular kinds of conflicts and having very very good disclosures and so what goldman said both in the articles and they way overstate the number of articles that don't have denials but when it came along and in went to the trouble of issuing press releases which is a really strong indication that this is a material issue said yes we see this but all of these conflicts are disclosed and we follow the law in every respect then what happens is the f c c comes along and makes quite clear that that wasn't true that when mark goldman was telling the market which is a classic price maintenance and that is the market something is disclosed the market which is like there's this real concern about comp goldman vampire squid is selling out its clients goldman then response and says no that's not true we have this thing that the response was one of the misstatements we do the message that the response was one of the  one of the misstatements yes that's in the complaint and i think that what what is not clearly erroneous is the district judges determination that you cannot say that there was no price impact and i do think the judge lesl that the sure court evaluated all the articles right and in fact he went to the trouble of saying he read them all personally he did quite carefully reviewed them in in a lot of detail i do think it's also fair to say that it's very difficult to disaggregate this argument from material the so there are a variety of arguments flying around in the case and so this is the one that the and mischel statements aren't immaterial and with respect the st time of that heard this case for the exact same argument now it's gotten it's is it is it comes in different forms the feels like close hand magic where someone pulls out a dove and then another drive you never know where materiality is going to show up in goldman's argument now it's in the definition of a price maintenance case but this is the argument that the statements weren't something that the market would include in the total mix of information if we could just pause for a moment on the implausibility of that that the market doesn't care whether it is that goldman is selling out its clients and when that's disclose the customers of goldman will realize well if i put millions of dollars into this goldman may be betting against me now is that possible but is it more likely than not i think judge probably who has been very familiar with all the expert reports and read all of the article said you cannot zero out price impact here you cannot say that there was no effect on the price when it was that these were revealed to be misstatements and just to give you a question that your expert didn't answer and ju attempt to answer why there was not even modest movement with the newspaper reports of conflicts that predated the f c c complaint so two things about that the st is just hard of course has a different opinion and then another opinion when they ask him to reconsider that another one and those are that's about materiality that the material i'm talking about price impact and the fact that the price doesn't move with our articles that riv relate  c complaint as well right this is your point about when you're indicted your honor that it's a big difference from when there's a book review in the new york times which is accompanied by a denial and then the f c c files a complaint with unbelievable details with quotes from the actual e mails with the structure of the the a part of the paulson transaction which hadn't been disclosed to the market at all so i do think that the judge probably was not remotely clearly erroneous to say these are of a different order of magnitude when it's quite clear that the government that the government regards these as incredibly significant conflicts and can i just say that have not been disclosed can i just say there is one kind of mathematical proof if you will of this and it's the other side  agrees that the corrective disclosures were material they obviously were the stock went down a lot so what they're trying to do is put this in the box of saying that the market only cared about this because they cared about the cost of the investigation that would result remember that the the settlement that comes from the f c c is five hundred and fifty million dollars as a result of these disclosures of the government investigating this and the fact that there were other resolve conflicts and this goes conflicts goldman sachs goes down by fifteen billion dollars so it seems really kind of in congress at the expert the expert for example pointed to analyst reports in the wake of the f c c disclosure that said quite clearly that this raised the serious concern about what was regarded as the goldman premium and that is that goldman would of that this aggregate the fact of an investigation from the disclosure of the conflict clearing practices of goal because it talks about how the investment banks in their an reports are saying that people will be less likely to invest in goldman because the premium is gone that the market that customers are going to lose faith in goldman and its reputation right the going in proposition was that goldman was going to be more aggressive about certain kinds of investments because while they raised the prospect of conflicts those conflicts were managed and these disclosures by the government show that it was in fact not managing the conflicts that meant to potential kuntz customers of goldman if you invest with goldman they may be betting against you may be set up to lose describes this not just abacus there are several of these c d o type arrangements and so you had situations in which goldman was saying to someone ok if you invest in th along with you and that was true to the tune of nine million dollars but i mean allegations like that in a prior are again of a of a sip significantly different degree without nearly the level of detail and accompanied by goldman's denials that can i just say that i do think your honor when it comes to a statement in a book review in the new york times when goldman goes to the trouble of saying ok we see this claim about a conflict we manage that conflict which is a complete answer there are a couple things about that the market generally respects people who stand up and speak for goldman we don't just say that they can't possibly be telling the truth they are i mean some of the some of the articles even t umbrage with some of the assertions made against goldman to some degree they are different they defend goldman of course they do that in terms that the majority of them do not like the articles i mean it's hard for me to understand how an article is equal to an end to it had goldman had failed to prove that there was no price impact whatsoever that every single bit of the decline in the price was attributable soley to a concern of the government investigation not how customers would regard goldman and that caused the stock to in which he placed significantly more weight on the fact that there was an allegation against an individual employee mr torres and no weight whatsoever about the significance of the allegations against the company and how central it was and the precise form they took i mean there's a lot of self selection and at the very least all i would ask is this case to judge probably to take a hard look at this question at an evidentiary hearing he had a whole set of arguments you read all the articles personally to say that he got it clearly erroneous seems in this record that these were price maintaining statements none there's no evidence contradicting the ten decisions of this court saying that no one would rely upon these statements you need to have a price maintaining statement like in the vendee where the company talked about you know we're we're we  have lots of cash and it turns out it doesn't not some statement like you know integrity is important to us those are the price maintaining statements you mentioned before that it was supposedly a denial was one of the statements that was challenged on classification not so it's just the business trading mechanism but generally that the public was protected no because barclays then you should take away from this argument your honor the district court dismissed all of the general statements and the case was all about the specifics this district court disk dismissed several  statements also did the only generals the only statements that were dismissed here was the the allegation that goldman sachs had an obligation to disclose the existence of the wells notice had been served by the f c c now it's hard to understand how you can square that analysis with keeping the other statements in the case but i go back to what i said before you can't just ignore what the statements say the statements are evidence and that evidence needs to be considered under the theory that's being pushed forward here all the plaintiff has to do is point to general statements like this say the price maintaining point to a stock drop and you have a case and you have and you have price impact without evidence of price impact he doesn't have any evidence a price impact is expert just found abnormal returns on one day he said that there were supposedly analysts reports were eight hundred and eighty dollars analyst reports during the class period none of them mention the so called price maintaining statements and certainly there were none around the times of the of the abacus complaint saying that the drop in the stock price was because the market learned that the price maintaining statements were not true no one referenced goldman sachs's business principles and investor saying voila we now know that this is principles are not true and they don't follow in every instance because no as the scores repeatedly said no reasonable investor would rely upon such statements so that goes to price impact you can't just say well it's materiality so it's completely off the board that's the error that was made and i really urge the court to look at how vertu we had last causation evidence was which was a class white issue very important to the merits  and the chief justice said no you've got to consider that and then aren't we manned in how burton to the district court basically did a redo if a company's doing something wrong and for years as they were not doing it wrong but ultimately this disclosure is not a right of contrition and just because you make general statements that we aim to comply with the law you don't have an obligation to disclose every act of wrongdoing and that's clear several start nd circuit all with the other side wants this court to do is ignore the fact that the premise behind the nd circuit decision that we cite is that no reasonable investor would rely upon them the evidence in this case supports the premise there's no evidence that any reasonable investor relied upon these price maintaining statements and the other side says well we don't even have to look to see whether on the corrective disclosure dates the reason the stock price price dropped was because investors realize that the price maintaining statement that they would rely upon because the drop there's no evidence and in fact he made a reference to the hudson c d o in the rd the  drop and so the problem here is what the other side is doing is taking the price manus theory which is it and expanding it well beyond the narrow confines which it is at there's no evidence that these statements were priced maintaining and there's no evidence of a link between their so called corrective disclosure dates and the supposedly price maintaining statement and judge probably didn't analyze the statements the nationalize the corrective disclosures and just and they basically assumed well because it dealt with materiality it's off the table well that's not what the