what happened here yawners is that platinum partners in the other claim is entered into options contracts with counter parties who were told by the defendants that the strike price of the india fund which was the underlying security issue would be adjusted to account for have repeatedly said is very fact specific the defendants were repeatedly on second circuit case law and one of the one of the leading cases that the defendants like to cite in this regard says and the party asserting immunity bears the burden of demonstrating its entitle to it so we have a clear mandate from the courts that immunity questions are to be handled on it on a case by case basis and if one looks at the case law that's been cited in the breeze almost see that that the facts of the situation here where the defendants are engaging in conduct that is not with respect to their regulatory hat but with respect to their hat as as profit making organizations that have been interested in making profit and have it in any conduct consistent with that profit making interest that is not part of the regulatory function that's entitle to community in the in the reisman case for example from had to do with promoting world com stock and the court said that they're not entitle to that immunity because in order to that that the promotion of the world com stock was not done as part of any regulatory function but rather in order to generate trading volume and income for the defendants and that they directly and indirectly profited from the sale of welcome shares it's the same situation here the the conduct issue here is not the decision to adjust the strike price it is not the timing of the public announcement but rather the contract is the private dissemination of material inside information it in two forms one to through a private website to its members of which plainness were not and also through rant conversations that information was disseminated early in the morning that the date of of when the trading occurred after the markets closed both defendants announce publicly for the first time that their better judgment for the strike price the only reason that private dissemination of information is taking place is to benefit the members who pay dues after all to become members and to increase their trade value because without that if the information had been disseminated publicly the trading volume that we had here and particularly the trading volume from these plaintiffs would never have existed trading volume leads to income in profits for these defendants so the immunity defense only comes into play when one can clearly  and the burden is on them one can clearly demonstrate that the conduct issue is part of the self regulatory function that were billeted down by the f c c and the united states government when as as was shown based on the stock listed on any change in the court said in that situation and choosing to create the index and disseminate the press information nasdaq represents no one but itself is the same situation here the same this for the same reason why that word in the nasdaq case held that there was not entitle me to munity should be no entitle me to immunity here but a never another case that's on point is the case for the judge doubt in that brother district of illinois against the c b l we were judge perry held that on the motion to dismiss there was not enough facts in the record to say that they had met their burden as a matter of law to be entitled to munity because they do where there was a situation where immunity was found is is very important to understand in the in in this in the middle case the second circuit was dealing with a situation where the question was whether there was merely for a public announcement of of a certain set of facts in that situation and the clearly in finding those immunity for the public announcement so that without the capacity to make an defendant would be stripped of a critical and necessary part of the regular court powers namely the power to inform the public of those actions it is undertaken in the interest of maintaining a fair and orderly market where protecting investors in the public interest that's what's in title two immunity protecting the pup protecting the public having an orderly market when you have a situation where the defendants have a private business and were wearing two hats one hat the public regulatory hat and the other hat a hat that gives material inside information to its members at the expense of others in the investing public that is not title to immunity for the for the reasons in the cases  it if i may your honor i'd like to turn to the the substantive points also i think exclusively on what they say is a a lack of a duty by these defendants to these plaintiffs in other words they're saying it's perfectly all right even if they're not of me and it's perfectly all right for them to tip inside information to their members because they have no duty to to the public in general and to these players specifically the problem with that argument wrong is that they totally ignore the fact that they have a relationship with everybody who trades on these exchanges including these planes the o c c your honor is actually the wrong who issues the options in question when when one  disseminate price information electronically to everyone in these markets including these plaintiffs so the duty was here the case it shows us with their duty as well that if one looks at going back to that the affiliated you case united states supreme court case dealing with the federal securities laws and the onor court or courts have said i guess i guess yes or my division is no i od no you are and that's what we have for your honor that these these defendants omitted to inform the public that there was going to be it an adjustment of the strike price and thereby giving some players in the markets an unfair advantage and they threw in a good case so  disclosure grows out of the fact that the defendant was active in encouraging a mascot for a certain stock and profited off the development of that market where my leading the defendant in that case to have a duty to disclose so there is a felony for the concept that that there's a duty to disclose and there is plenty of authority the texas gulf sulphur case from the second circuit in one of the early leading cases in this area that says when you're engaged in trading the securit market you have a duty to abstain or disclose so when these defendants are empowered to making a market in being parties to the transaction and they're going to disseminate they would then possession of material inside information and they're should be title to munity and that there should not be a cause of action for tipping material inside information they're basically asking this court to engross a system that they have in place that allows them to create an  even playing field in these important securities markets in this city in the state and in this country and i don't think that's something that this court would want to endorse under any situation but certainly not but isn't that something that you should securities committee made a decision to adjust these particular auction stright rights and then they announce that citi and both of those acts are regulatory in nature and are entitled to violating their rules or for instances when they claim they be s r o didn't properly fulfill its regulatory responsibilities there is a remedy the remedy is the s e c comes after the  law private litigants like the scheme that congress has an act it doesn't provide for private litigants to question the manner in which s are rose this charter regulatory functions so if you if you allow for example  come in and say we don't like the method of the ausman you know we think there should have been a public announcement and if you start down that path you're quickly down a slippery saw where first it's going to be we don't like that the public nature of that announcement well there are other ways you could have we think are better and if you allow courts and private litigants to define the regulatory duties of s r o all the cats work of regulation and the doctrine of regulatory immunity was developed to make sure that didn't happen you would have fifty different standards that s r o those had to comply with and that instead the s e c could exercise its expertise in the area it could consider competing factors and it could decide whether the s r o it properly discharged regulatory duties and yes arose or liable if they don't properly discharge their regulatory duties yes yes yes we see really do that they do it all the time there are a number of investigations where s r o those in fact in the n y of the act and you shouldn't inquire beyond that as to the method or motives behind the act courts are rock solid on that they're consistent all the courts of appeals have held that you have to object if they consider the objective nature of the is active disseminating world coms the mantle statements and of course that that's regulatory activity be the area where the court upheld the plane had nothing to do with regulatory activity wasn't tied to a regulatory act here the announcement is directly tied to regulatory act it regulatory act was the decision to make the strike price of gas and courts repeatedly have all that the announcement of a regulatory decision when a you know private or premature announcement and they've held that those types of acts are to fall within the doctrine of regulatory miry of the contract case with mr main mentioned as well so it is as though a very different case it was a case that i was and that this case is very different the facts that give rise to immunity come from classrooms complaint they say they complained about the regulatory decision they sought to enjoin it when they realize they were up against the regulatory immunity market makers they traded with who may or may not have immunity and who may or may not have other defenses but they've dismissed those flames voluntarily and they haven't pursued those plates it is the people who allegedly received this inside information and traded on has failed to allege either of these there is certainly no affirmative misrepresentation alleged they don't contend that cvo we proceed made any misrepresentation to them rather their entire claim is based on an alleged omission they argue that c b l in r c c failed to tell the investing public about the test and decision at the same time that it told some people about it this is not an actionable mission you should have got it to the news because i don't look at that news you should have waited till your close up so they would know about it you should have done it you know there are all kinds of variations on how the word gets out but and and  why i say yes you're on every you could because you don't have a duty to speak to these other people and they say you could just tell your group of insiders and then the the poor little investor what does he do you know it well that's where you get into the regulatory immunity  can take care of it your honor the pete as mr greenwald said you've got people who are actually trading here it we're talking about the people who are the regulators of the market they're suing them if they sued the people who were trading that's a different story bad and they're dealing with those people they're not they're not dealing with the people regulating the market and i would say the balanced case by the illinois supreme court is very the claim there was someone who bought a drug soon a drug company saying you had a duty to disclose to the public that the side effects of this truck and that person that made that claim had  not received any communication from the drug company saying one thing or another but they said no you had a duty to disclose this was to the entire public well the illinois supreme court said there is no cause of action under those circumstances there is no duty to speak because otherwise you would have a duty to speak to the whole world don't you don't think about just platinum out here there would be x names of people out here that this duty would supposedly run to if it ran to the entire public and there is no case law that says it runs there that the balance case says the opposite that says you have to make a statement if you make a statement then you're under a duty either make that statement true or make a complete and that's where the  they're saying you had this duty that effectively comes out of the air to talk ice and to tell everybody else whenever you tell someone else and that simply does not exist on the illinois law and i think that the balanced case is is directly on point for that point there's really no principle difference between saying a drug company has to tell the world about the side effects that drive or that o c c and c d o we have to tell the world about the strike price adjustment at the same time so for those reasons runners we we were dead and old and simply the process is is consistent with the long running wallet says you have to have a fiduciary duty or you have to have eight incomplete or misleading statement in order to have a duty to the school search that's right in line with all the all the case law so for those reasons we could ask you did you affirm the judgement merely question the defendant's argument is circular they serve a yes this is the only one who has the power to second guess regulatory this is what i am no but i think you covered immunity pretty good ok maybe some of the other and that begs the question is this a regulatory decision or not and for all the reasons i said before it's simply not we don't we're not questioning the gesture decision where the public announcement and they are turning the issue into something that it's not here  your question enema i'm not questioning the the matter of where the public announcement i'm questioning the fact that that information about the strike price was and that's the huge difference thing this in the specialist case that the inside information is not only inside information it's inside information from which they profit they makes the membership list all you put in increases trading volume and the specialist case is different because you're talking about tipping people that they're under investigation there's no monetary benefit to be paid but by the new york stock exchange and doing that is part of the regulatory function in terms of discipline and that sort of  well comstock and the other nasdaq situation with nasdaq market was actually making a market in derivatives for its own financial benefit these s arose frequently wear two hats and when the hat let's it that when they were in the hat with the conduct in question is it directly supportive of their bottom line and their private interest that has nothing to do with regulatory regulating the markets when they're not title to muni