distinguish grimes and what's your best argument for why we don't just simply follow what we did in grimes well first of all grimes didn't deal with the private securities litigation reform know she does now ok thank you thank you to thanks mike but in addition to that going back to the origin of the constitutional foundations for having these nationwide class actions which is parties well actually you're bringing claims in front of court i mean your deal of virtual representation not really people in these class actions and the claim that is being brought in from the court the due process that is required reach claim has to be calibrated to the nature of the claim that's being one from the court so in philips they stated that when you bring in the claim and it's an out of state party and when you're seeking to deal with the claim that doesn't have any contacts with the forum you're losing me sure what yours i ask you how do you distinguish this case from grimes and you say the p s are a is a way to do so p s are a is in effect a way of dealing with who represents the class yes a propos wants to represent the class in a federal action what's that got to do with distinguishing this case from crimes well crime said you could really a state court could release federal claims that was then followed up by matzoh shita in other words you can have in the state court to release federal claims with that on their own could not have been brought in the state court if you have a release that that in effect  that was the subject matter jurisdiction that was really resolved with t v way back when the second circuit that said the court can release claims it doesn't have its subject matter jurisdiction to entertain but that not everything here in it's really i mean the process here is what the demutualisation of the exchanges i guess and ginsburg dealt with that concept correct now  i mean you know none of these cases come out unless you deal with the consequences the mutualization issue are they all sort of the you know under the same general fact pattern well i mean you have different theories i understand that you've got different thing  w i don't understand hell it could be more of the same fact pattern because the demutualisation claim dealt with the publication of the information in them out in two thousand and three which is transaction that occurred here in the eastern district of pennsylvania at the coast at that time in october two thousand and three people to for go seeking their state will appraisal rights then some time later in two thousand and five you have eight separate discrete transaction in which two wrongs occurred so there's an intervening action at that point that cuts off any proximate cause chain it's sort of a break in the chain of causation here if you're saying it's a single fact pattern leading from the mutualization to the launch commitment the question is if you have a broad release which obviously is why these things settle with your  defendant what you're getting out of it is a release does that broad release cover the claims that you make with regard to the information memorandum and your claims under ten b five and twenty nine b and it appears that at some point you look at the complaint in the federal action you look at the complaint in the state action they're pretty darn similar except for the cover page well i don't n so you see the point is if you have a class action and you have a class representative you have a class defined by people who own stock beginning april twentieth two thousand and five or my understanding is the sorting point for a class action as you have to determine first of all if the name plaintive can state a claim if the name plaintiff can state a claim and you can define a class that can proceed to gether or that claim now this class april twentieth two thousand and five seriously can't be considered to hold the securities law a plane from a transaction that with a proposal defendants to take the exchange that was one hundred percent on by plaintiffs and that they could do something that would put more money into people's pockets and they had a proposal and the proposal they noted would dilute the ownership interest they ultimately were going to do a deal with archipelago they decided not to they think that they thought they could sweeten the deal by doing it with strategic investors and it appears that in fact they did sweeten the deal by dealing with strategic investors and you're claiming somehow what's the overarching claim that somehow they they lied to you in a way that cause you to relinquish your control and you didn't get what they said they were going to give to you or well at the time of the mutualization the overarching claim is they have lied to us as to the value of the exchange the people did attempt to exercise your state more appraisal rights but the informational memorandum misled them in a manner so that they were too late to exercise it upright people actually went delaware but were told they were out of time at that time but it but if that information memorandum was part of the process of the mutualization yes and when you opposed the matter before the chancery court the court said that this is about the mutualization what did you not know then that you know now that was carved out from the release i mean it was pretty clear the house with a chance report thought it was re it's implicit but what the other side says look this is not a difficult case these the plaintiffs here appeared and argued before the court of chancery and also before the supreme court of delaware  and all of these issues the same issues that they're trying to litigate here and they lost and that's it why are you not barred from having a having lived a gated the issue of whether the release was part of the same set of facts that the i'm sorry the federal claims were same set of facts having litigated that and los how can you come and really you've got another couple of bites at the apple here what do you say to that well first that may be part of our federal system that it's set up is just provide for collateral attacks in these as to these release it is but go and beyond that the gallant investors was not part of the parties that appeared in delaware and in addition attorney general i think where the school boards came before the court and said you're forcing us to appear here we have monetary claims we don't want to give up and you're not giving us due process now here this is not only the exception that was identified in the real estate any trust but here some of these parties were actually to fend than speak course the exchange imposed under its phillips rule six fifty one on those who were members of the phil ochs they imposed a liability so not only did they lose monetary damages but they had a liability imposed upon them negotiated by chuck ginsburg who was not in member of the fell acts of could not have any standing on any claim a member had had no financial stake in a number of the claims stated let's assume all of that's the case but let's go back to just able this question and with with a bit of a lead in state law action there is a question as to whether the release covers anything relating to the mutualization you bring up that argument to the court of chancery and to the supreme court the court of chance says that indeed it does apply to the whole process of the mutualization that's the process it appears that you were there you made your arguments they were heard and they were rejected and federal courts look to state law for application of seven hundred thirty eight that's the way it works where was anything denied you that you otherwise could have gotten well as a broad statement that's correct as to seven hundred thirty eight however when you have a class action according to phillips petroleum and you bring people into a foreign state that have no other contacts with that form then you have a choice of one question arises here on the cla of a merger and all the claims were then that but the point is that there are were federal claims deemed to be released in grimes by the state court and the parties argued that they shouldn't cover that at last in our courts that's in effect game set and match you were there you had the chance to argue your arguments were heard and they were rejected well then you're saying there's no longer any way to preserve any claim that this court recognized a real estate title or that the supreme court recognized in england where do to the need to appear before a state court they were allowed to reserve there are federal law issues so that i don't think that there's a real conflict here but i think these parties did all in their power to exercise their rights for a claim they were legitimately before the delaware chance record one and also attempt to preserve they they stated they wanted opt out they did not want to be in delaware on these other claims so the question really here is the power to bind or when different claims and do you have different measures the pending upon the nature of the claim and do you need is t clearest representative that cliff's represented be qualified to represent different parties for each claim raise because obviously the whole class and ginsburg question though this i mean you have that supreme court case jefferson versus a rich versus jefferson county where you go in and hear what what did began in the others know what was going to be decided by the delaware chance record you had two wrongs alleged there's a certain hydraulic pressure that courts have recognized the  we had known if this was a reasonable expectation as justice rehnquist pointed out in philips petroleum maybe we would be intervened at the quota certification said chuck in spurts not really an adequate representative that we were gonna hearing at that point but the notice problem also kicks in see eat each of these claims if you take the delaware courts approach your decision or wrong because data rose from the same evidence course of dealings said a rep you said the court had jurisdiction over the contract claims but not over it defamation claims so there's a clear conflict here between federal and state law these parties had no contact with delaware other than the case that they worked nonstop day out then to two wrongs alleged by chuck in this moment maybe we're ending up where we started i ask you how you would distinguish this from grams and you said that it dealt with the p l o s and in effect you're saying that mr ginsburg wasn't the correct person to act as a credit act i think there's an overlap between the two i don't think they were thinking about amending it and i think with the enactment of this your regional uniform standards act they were looking to actually eliminate that question so there wouldn't be any overlap here you had what's called the non coverage security and any of that so what would have been covered but sometimes laws do overlap and when you they overlap how do you resolve them and cure the more important policy which congress and or the courts of appeals have recognized as well as the supreme court is they wanted to deal with good morning in may please the court my name is stephen cass and byrd i represent the exchange defendants and i'm arguing on behalf of all defendant palance now the ginsburg action dealt with the the end of the demutual process and it looks like this case deals with the beginning is that i would respectfully disagree with that of your both cases dealt with the entire process if you look at the amended complaint in this action with the plaintiffs arguing that complaint is essentially that there was a tripartite transaction that consisted of the neutralization the strategic investments and a self tender that was offered by the exchange in connection with the strategic invents investments time wise and that those three together created some unified transaction that violated rule ten b five if you look if you look at the beginning of the history of these cases that is simply and the size both cases began eight days apart in june of two thousand and six both cases included allegations with respect of all the transactions that i just mentioned both cases sought as the remedy rescission of the stock that was a word that was provided conveyed to the strategic investors and  supreme court both explicitly address the issue of the similarity between the two losses the delaware supreme court said the neutralization was both the subject of claims of wrongdoing in the complaint and of intensive pretrial discovery the chance or delaware case moved forward with very extensive discovery some one hundred fifty thousand pages of documents were produced dozens and dozens of that positions were taken and that matter only settled on the very eve of trial after a mediation by vice chance or lam it was not the sitting chancellor that there are human hear them at the beginning arguing that ginsburg in effect was their briefs this provides a road map for how to get around the requirements of the you sat on that panel and additionally the supreme court in tel labs both explicitly found that the purpose of the p s l right was to discourage frivolous litigation by plaintiffs and plaintiff's counsel and in fact to put in place impediments to frivolous securities litigation moving forward so the very congressional purpose of the p s l ari and followed up by sluice was to prevent to create impediments to frivolous securities litigation moving forward there's nothing inconsistent with that and allowing resolution appropriate resolution in the state court of claims that in compas federal securities claims as this court crimes is said is not that she has said so there's no inconsistency said had already said that that the legal theory presented here was not a valid one i mean this was not you can't look at the delaware case and in any sense get the feeling of some color of an enron which is which was a concern in the real estate title services case for example there was some concern about whether it was an enron i mean this is a case where you went through as i already said the massive discovery there was very very substantial compensation provided and consideration provided in the settlement there was an incredible abundance of process that was offered in connection with the settlement i mean the mcgowan plaintiffs i heard my colleague say something about  investors not participating as an object or course if all you do is reference the supplemental appendix each plaintiff here did participate extensively this is going to forty one page brief identifying their objections they received documentary discovery the very lengthy pretrial briefs they were herded argument one of the plate this here was one of the appellant's of the delaware supreme court and that was all just on the initial approval of the settlement then there was a question of al of an allocation of that settlement and again that allocation addressed all of the mcgowan plaintiff's active involvement and and objections and they ought to argue their case about the value that should be ascribed to an already dismissed federal court claim that was on appeal their case that you can hang your hat on that wasn't isn't foreclosed by our president and grimes and i guess we dealt with that during the extensive well unless you remain for a hearing on whether they received adequate due process which they claim they did not receive given the nature of their claims that they were also subject to liabilities which is more than the school board that's what i think we dealt with pretty extensively actually requires of necessity repeal i mean there's cases where statutes overlap for instance with national bank act they said one statute was more particular than another i think it was giving jurisdiction so you can give effect to both without one necessarily being repealed or impliedly repealed and perhaps the two things at the be construed in harmony and that's a question i guess for th