because the complaints alleged that the defendants in conspiring to suppress libel or intended to profit by paying less interest and the second is that the plaintiffs had properly alleged in any trust  conspiracy judge buchwald dismissed these complaints on two essential grounds as it comes to comes to personal jurisdiction and that is with respect to what will call the selling defendants that the plaintiffs had not alleged that the defendants intended to profit by paying less interest but rather had just intended to make themselves look more financially sound and then with respect to the non selling defendants that we had not properly alleged a conspiracy to us this case on appeal is groundhog day those are the arguments that were presented and rejected the last time this court heard the case we have alleged that there is jurisdiction with respect to the selling defendants because we are in california they marketed us to us in california we purchased in california products that were the subject of suppression of libel or and that's a classic instance of the existence of personal jurisdiction it's like the bristol myers squibb case with respect to thing is that there are members of the conspiracy that schwab didn't purchase from either through the bank where the broker dealer so we agree that there is this question of what you do about the broker dealers but that's the universe that i'm trying to separate them into and that is either their agent directly that's how they sell that the bank doesn't happen to sell the sushi selling defendants also are into groups right direction alors and then through her broker dealers absolutely now this wasn't of course the analysis this is different for the  two i think there's an additional question certainly it's not how the case was resolved below but yes there is an argument that's made now that says well you have to prove something different with respect to the subset of defendants the didn't sell to schwab as the  intervened in california as opposed to the plaintiffs simply purchasing i'm and i can get you the precise paragraph numbers and i'm pleased to do that when i come back up out be able to give you would be very helpful because i because when i was looking at the complaint  reading the complaint as there were many allegations that many many instruments based on library were purchased in california but very little in the complaint says anything about conduct by the defendants encounter and i think it's probably very important to recognize kind of the history and why it is that the complaints are in this way they've been two generations of the swap shop complaints of course the first walk complaints were filed the defendants didn't make any arguments with respect to the lack of personal jurisdiction at all and so there was no need to amend or add detail with respect to this question the cases were dismissed on another ground they were refiled in california they were really m t l at that point the defendants moved to dismiss for lack of personal jurisdiction but nothing to do with this instead they made the kind of big picture on all grounds you know that with a speck to any defendant because what happened here was fundamentally in london that's where the wrongful conduct occurred to them and this is what judge buckwild agreed with then the case was properly dismissed so we have not yet been presented in the district court with the decision that you are now raising it that mr catalyst has come into the case and as you know advanced a kind of more nuanced ground for dismissing some of the defendants for lack of personal jurisdiction and so we think one of two things will happen you'll be satisfied with our allegations will be given the opportunity to amanda and with respect to that we point to the court that we have in the context of what's known as libel or six as this case goes through a series of generations produce and introduced a series of affidavits detailing it in you know providing additional detail with respect to how it is these transactions occurred you know there are all all sorts of waiver and forfeiture arguments made by both sides in this case and i was wondering whether we should take any of them as strictly as we might under other circumstances as i read the litigation below in the opinion below it looks as if this is not a case in which you have nothing else going on except the tribe made this complaint and then the district court analyzes the allegations of this complaint and dismisses the grounds of lack of personal  jurisdiction it's not clear to me that the district court ever analyze the allegations of this complaint or that that was the way this was litigated all the opinion proceeds at a feral animals in the prison of the district court flies at a pretty high altitude to the point where the parties had to decide and make some kind of stipulation as to what was dismissed and what wasn't dismissed applying the gent very general principles the court of the district and i'm wondering on for that circumstance you know when it comes to should there have been a motion to amend or something like that is that really realistic in this case well it is in one very important aspect and so we sympathize a suggested with the district court being confronted with a lot of different complaints a lot of different allegations this is how the judge decided to manage it we're not you know no criticism but i don't think you can say criticize us for is not having a version of a complaint that responds to version of a dismissal argument that was never presented below you can have whatever you know sympathy we want to have with respect to how the district judge managed all of the n b a all cases it's obviously very complex my point is simply that the defendants did not move to dismiss on this ground therefore we did not have the opportunity to amend the complaint and address them and that is i think a very fair thing to way to look at the case from our perspective and that is arc if you have a concern about the level of detail  our complaint and we don't think you should but if you were to this is the ordinary case where a defendant would move to dismiss the case and we would say well we can plead those jurisdictional allegations if you just give us a chance to our issue is that this argument was introduced on appeal here reason you couldn't have done that at the district court after her decision there is an analysis both parties decide pursuant to this analysis you say there's no purpose personal jurisdiction but we could reply that you didn't do that  because this argument was made below we didn't i mean it was a very hard for us to anticipate that on appeal the defendants would make this argument differentiating between the different kinds of defendants and different kinds of transactions which is it comes to us when we get here that's the only reason i perfectly take the point that say hypothetically that another set of plaintiffs had made a different set of allegations and we could have seen this concern so there are some other part of the litigation this just comes as a bolt from the blue the idea that we don't have a sufficient amount of detail about the precise defendants for the precise kinds of transactions again i do think the complaint is perfectly well pleaded insufficiently so under tom lee and the like but i would say it would be terribly unfair to allow the defendants to come here and say well you have distinguished say between the selling and selling or the fixed in the variable rate of the the broker dealers or not this is just not how the case was litigated until we got here with respect to the arguments that judge buchwald considered and that judge buckwild used to those are the arguments that were made in dublin to and were rejected that's why i think you see all of these new arguments by the defendants on appeal they're trying to come up with some other way in light of this court's intervening holding to joe is it was trying to understand what is your  suggestion for what we do or are you asking us to decide that the defendants are wrong about all these other issues or just to say well what judge buchwald as a basis for dismissal was incorrect thank you very much go back and consider all these other arguments that the defendants have come up with this is itself a little bit of a reprise of go into the court will recall that there was a reason for the judge having dismissed the case for the first time around the defendants argued as an alternative ground to affirm on the basis of a lack of conspiracy so it's a similar sort of situation the difference is the judge buchwald in that case had found an insufficiently pleaded conspiracy in an intervening just record opinion that has not happened here we would resolve the case this way take a look at the arguments the judge buckwild accepted we don't think that can be reconciled with dell point to then take a look at the additional arguments that are made by the defendants and test them against our complaint if you find them insufficient we don't think you should find the complaint insufficient then you would say well the defendants have the you can either reject if the complaint is sufficient than simply say the defendants are wrong on this complaint but if you think there is some merit to their being insufficient amount of detail in the complaints say the defendants can make this in front of judge buckwild judge buckwild consider can consider whether we can properly a man but you can't i don't think you can affirm on the ground that we just didn't have an opportunity to  address not complain and what's the greater detail would be about with respect to these so called indirect sellers would be about the extent to which the broker dealers acted as agents of the defendant banks yes and with respect to the so called direct sellers there are questions with respect to citibank h s b c and j p morgan as to whether they are defined clearly enough in the complaint because each of those all the allegations made about those entities are made about a dual entity that two different entities and i find this all fascinating but it isn't at all what was the subject of the pleading below we've had no opportunity to take any discovery on this question because we were dismissed and poured out of the case very early on but yes i recognize these are all very interesting questions they are not questions that were put to judge buchwald they were not questions that we could have moved to amend our complaint to address we do think the affidavits that we've pointed to in our brief do provide a substantial amount of detail but if they if these are real arguments they're welcome to try to make and there's a separate pure argument that we really haven't gotten to a pure argument of law about the way in which the existence of a conspiracy to manipulate lie would or would not give personal jurisdiction  california over members of that conspiracy to manipulate library who did not directly or indirectly sell anything in california as far as we know or and so judge buchwald's just found with respect to this that we hadn't needed a conspiracy there is no that's not right so now we have the question of weather the supreme court's decisions in cases like walden have undermined cases like lease co or other court of appeals decisions that recognize the existence of conspiracy jurisdiction we think this is what's going lana hartsfield their money is taken and then they go home to nevada in a case like worldwide volkswagen you have somebody who drives the kept car out of the northeast into oklahoma the court is concerned there that it has to be the defendant that you know their activity in the form as opposed to the plane whatever the plaintiff goes off and does and so what has happened here is sometimes does is that the appellate is have seized on the definite work article of the because it happens to be a case involving a defendant those cases don't fall for the very separate question of when you agreed to enter into conspiracy and it is a necessary overt act in furtherance of the conspiracy it's perfectly obvious than shwe obvious buying billions of dollars of these products in california particularly when the non selling defendants are themselves selling it billions of dollars in products in a related to come in for quote closely related conduct into the forum but nothing the supreme court has said would suggest that those  subject to jurisdiction one court can't evaluate the lawfulness of the conspiracy remember the upshot here you go back to the school for a minute and explain why you think that is so good for you didn't judge friendly find there was no personal jurisdiction over someone who was both involved in the conspiracy and was a law partner of the person who was allowed to be sued will the sure but the point there was that the argument for personal jurisdiction is that there was general jurisdiction with respect to a defendant and you couldn't attach the conspirators and assert your section on that basis big yes general jurisdiction is the notion that you're in home in the form this is a very different situation in which we have alleged i think quite properly that the members of the conspiracy knew that there would be sales into california to somebody like schwab who is as i said is buying billions of dollars of these products it is not that the members of the conspiracy would anticipate being held in deliberation in say delaware the home state of one of the selling defendants but rather that there was an active engagement of the conspiracy of selling the products in california and i would just caution the court of show minimum contacts to those conspirators who didn't sell well it i interesting question whether we would have to but we certainly can there is no dispute that the other members of the conspiracy in closely related conduct sold massive amounts of what we allege to be price fixed goods into the jurisdiction it would be an interesting question if say you know you had a bank that had nothing to do with any sales to california but that's not alleged to be the case here that all of the defendants we think are engaged in this marketplace in furtherance of the conspiracy this becomes the easier less close case than if you just had somebody was completely distant the only thing i was going to mention is that those are are there any contacts alleged between california and those non selling the fund yeah i think that the if i believe the answer that question is yes because there is a general allegation that the conspirators are selling into california if that were not the case it would if that allegation isn't that in there and i will check the precise paragraph for you it is only because of the situation that we describe before and that is this is a new and interesting argument that's raised on appeal on that an opportunity to replete much yeah i just don't think that's going to be much of a problem these are major international banks california is a massive market is not going to surprise anybody that they are selling you know they're borrowing money from people in california on a large scale and the thing that i was going to mention is that do you recall of course that this the fiction which has been long accepted is absolutely foundational to how it is that any trust conspiracies are pursued in the united states and to say that each conspirator has to have sold to a particular party in the jurisdiction would mean that these cases have to be litigated all over the country in a way that's relatively nonsensical and certainly doesn't comport with any concern about fairness you know substantial justice the idea that these major international banks would be subject to suit by schwab buying six hundred billion dollars worth of live or a price for fix goods is not going to be a surprise to anybody thank you judge livingstone it please the court the supreme court and walton was clear that due process requires the defendant himself to be responsible for contacts with the form and that the defendant suit related conduct must create a substantial connection with the state before you get into that would you agree as these issues warrant litigated in the district court and have been raised now for the first time heavens me no not at all he called the support from the blue i don't think he is using that phrase correctly at all so let me first just set out i think they're essentially three baskets of defendants one is the five alleged to be selling banks that sold securities alleged to sell securities to swap and cal in california the second are five banks that are alleged to have sold through their broker through broker dealers and then there's the remaining members who are only brought in because there are so called conspirators or something like that with respect to each of these your honor we were very clear starting with motion to dismiss page seventeen quote generic allegations which identify no specific backs or any specific defendant or facially insufficient to justify personal jurisdiction then with respect to basket one about whether or not they had alleged facts about selling two important things the motion dismiss page thirteen quote the fact that plaintiff such a swab purchased a curious or other california trading desks are not contacts created by defendants related to the plaintiff cause of action the permit the exercise pacific jurisdiction than their ply briefing page six goes on about this and judge livingston when you ask him and you said where is the cite in the complaint for anything about marketing he said i'll get it to you on reply i'd be very interested in that because this is nowhere in the complaint whatsoever it is however in the declarations that he submitted after he lost this case in the district court in two thousand and fifteen or sixteen after the notice of appeal had been filed in this case to be sure those declarations say so but that is way too little far too late he should have done exactly what the other plaintiffs did like darby the darby plaintiffs after judge buchwald ruled said hey i want to leave to amend and they got that leave to amend their complaint but what they did instead was ask for a final judgment by the district court and then run to this court the second circuit and now we're basically saying oh you didn't raise this below but you know and so on if they if there was any ambiguity and i'll give you the citations judge chin to the other two baskets as well but if there was any ambiguity it sure seems to me it should have been resolved then i mean and by the way this wasn't even their first motion to a they first filed a complaint they that the judge then asked us what are our defenses in a docket number six zero one we said right away our defense is going to be personal jurisdiction and we filed a forty page brief and those are the citations i am giving you to that brief now and if that wasn't enough they could have moved to amend then but we find out the long brief about all of these different things in response by the way to twenty seven is for do with those various references in your brief  don't read and maybe i'm mistaken here it is a very long opinion i don't read the district court as adopting this theory that there are three different baskets and here's what's wrong with the allegations as to this one and here's what's wrong with the allegations as to that one and here's what's wrong with the allegations as to the so called conspirators at all to be sure judge lynch i think that in this four hundred page opinion which you know i think was you know done with a lot of care she didn't connect all the dots and left it for the parties but i think that's my point which is if there was any ambiguity it was up to them to do and say hey we want to motion to clarify we want leave to amend the complaint like the darby plaintiffs instead what they did is say oh no we'll connect the dots for you we lost everything it's a final judgment that was their argument before the district court and then they came to the court of appeals and now he wants leave to amend again well but if they if what they're saying is on the district court's principle we lose end of story it wouldn't matter would it if the district were correct it wouldn't matter whether the direct sellers marketed to california or schwab just saw something that a schwab person happens to be in amsterdam and sees a billboard and decides to buy it's not absolutely judgment we agree that you have to ask the question was the district court's legal principle right on walton and so on and if it is right then we think that it knocks out all three of these categories with the possible caveat about conspiracy which we'll talk about later which the judge of course did reach so that my only point to you is to not get distracted by this oh it wasn't raised below give us another chance to amend and so on because i think this court should decide this now here at this moment in time because it was teed up the judge did rule on these issues and and i think it's absolutely fair game going to be very clear what exactly are you saying the district court did rule on i think the judge ruled on the fact that there was no jurisdiction with respect  example the selling defendants and once the judge did that she also said there was no you know conspiracy jurisdiction things like that so i think with respect to those and if i just could maybe just return to judge chin just at least give you the citations to deal with and complete that question and then we can go into the different baskets with respect to the second basket about broker dealers if you look at the reply brief it pages nine and eleven of our motion to dismiss we go specifically through the nonparty broker dealer allegations that they've made and explain why they're not sufficient and then with respect to conspiracy pages fifteen and sixteen of the brief and then page thirteen of the reply we do the same thing and by the way this was a forty page brief we're given forty pages to brief and dismissed twenty seven different sets of complainants complaints including the city of philadelphia you know the f b i see you know prudential a whole but you know a whole bunch of different allegations but i think that we did all of that and analyze those and so when you ask yourself return went your question which is you know does this basket one which is the selling defendants which is i think they're only you know halfway good or given i think at the end of the day it's not close does that comport with what the supreme court has said about due process and what this court has said in the in the walton decision has been a selling defendants if it is the case that the selling defendants sent prospectuses into california with respect to certain securities that are affected by this conspiracy and someone california purchased there is not a specific jurisdiction to sue over that theory so two things number one as i was saying to judge livingston this kind of marketing solicitation stuff is a new thing  it page eleven goes on explains why it's not in the complaint and number two our point in judge buchwald's point is the only surviving claim on the merits is fraud about libel or based manipulation and according to their complaint all of that took place in london now i will grant you judge lynch if the claim were different if for example as judge buchwald says it paid s p a page one forty one if it was a failure to omit to provide information while they were selling securities that could have taken place in california because after all shop was buying them their name is the first part of the conspiracy is in london and if you live in the block the second part of the conspiracy is taking those manipulating rates and then selling it in california so that's a different scenario so again as this case comes to the court the only surviving claim is librorum base manipulation it's not wrongful emission or the opinion perty let paying less interest isn't in there at all rather the language was the allegations quote evince a common motive singular increase profits in the projection of financial soundness and the footnote there with all the citations are about financial that as it may our point to you is to say that the allegation here at the end of the day conspiracy itself isn't some independent thing they're arguing it's rather california based fraud and when you ask yourself either conspiracy to commit california based fraud or the california based direct fraud for basket one the question is what occurred in california with respect to those claims in our brief page twenty six lays out the elements of california based fraud all of that stuff occurred in london not here and here's two ways of just testing that and understanding why this isn't for example the products liability claim or something like that ask yourself who they're complaining about their complaint to page eight sixty eight says we're complaining about circularity  by goldman not by these eighteen defendants but by someone else and saying we got hurt it's fraud in california ask yourself the when question what securities are they complaining about their complaint says we're complaining about securities that were bought before any of the alleged manipulation took place that is to say this is a unique claim that they're making cause of action that cause of action is california based fraud and those specific elements occur california now if again so same digital inch if it was a wrongful emission claim or something like that that's if it was a real one correct there was and could you tell me where exactly in the district court's opinion the district court rejected that claim on the merits so between s p a one forty one to one forty three here's what she says she says wrongful admission claims in general could take place in california and right give rise to jurisdiction but the only kind of wrongful emission claim there is under california law is when there isn't an arm's length transaction that is to say when there's some special relationship like a swap transaction and if schwab had alleged that they were in a swap transaction by the way like the darby plaintiffs absolutely that would be something in which they'd have a pretty good argument about jurisdiction because under this court's decision and waltman the elements of the offense elements of the claim would have taken place in california the problem is this is a unique cause of action it's fraud based in california based on the manipulation of lie poor and with respect to that their own complaint says hey all this stuff took place in london which is why their complaint is complaining about securities and not sold by the eighteen defendants and security sold outside of the challenge period if i could maybe spend a moment on conspiracy because i know just once that was something that us my my friend on the other side and i think you know there's a couple of things that are very important i think you know as you were picking up on you know lease go is the latest judge friendly's decisions the latest in that but you know even before that bertha building and so on have made very clear that the presence of a conspirator is not enough to confer jurisdiction and it would really i think you know really damage things and be in very much tension with walton which focus on the defendant himself to say that the mere allegation of conspiracy is enough to create jurisdiction and certainly to create the substantial presence that the supreme court is required and my friend says oh that's going to undermine law enforcement and all of that that's in his reply brief citing a d o j brief that they filed in ohio and the two things he doesn't tell you about that brief in that decision are number one that was the government's alternative argument and number two the court there said we don't need to even buy action based on a risk expedition directed in that case by the way it was even a corporate you know core corporate case but you know that that's what the judge said was a way to deal with that so i don't really see any kind of dramatic impact i think the these the lower courts in the circuit have been saying there is no conspiracy jurisdiction under allegations similar to these and those are the citations in our brief but i think our fundamental point just to get back to it is to say walden and walt and the two w cases they sound very similar basically set out that it's the defendant himself that must be responsible for the substantial connections and the test of that is to look to the elements of the claim and the elements of this claim as their brief lays out in page fifty six all of those elements took place in london there are other types of claims grant chip products liability other things like that in which the cause of action and the behavior takes place in the forum like my friend's indication of bristol myers but this is unique allegation that's being levied against us and it's the only one that survives and i understand that the district court has a long opinion but at the end of the day i thought she got it exactly right in basically accepting the arguments that we put forth and leaving it for the parties to connect a few dots they connected those dots and say they lost and i think that was progress and questions they think i may be confused about something you said earlier reducing the district court dismissed on the merits any claim for fraud based on the failure to disclose library manipulation when selling the library based products because i thought that the dismissal she dismissed the fixed rate instruments with regard to the floating rate instruments that was still alive claim so with respect to the floating rate instruments you know i think that the district court there you know i think was saying that there was no essential loss causation because these securities are essentially kind of baked  claims in with respect to the state law claims you know i think with respect to the fixed law or the fixed rate ones absolutely she dismissed them as saying that there's no fraud on the market this is essentially fraud on the market they're complaining about buying so i'm not buying certain securities live or based securities and the floating rate claims exactly so i think with respect to floating rate claims i think she went on last causation there and but i think that they would be all thrown out on  a personal jurisdiction as well for the reasons i was saying to judge chen all of those allegations at the end of the day are allegations about not having california based ties you know the  you your honor so with respect to the question of what representations are discussed in the complaint at page eight sixty eight of the complaint there's a there's a general allegation paragraph twenty one of the complaint but it this is what's in paragraph two seventy five for example that the instruments contain misstatements or admissions of material fact with respect to the accuracy or integrity of lie bore which defendants made or caused to be made and it goes forward from there so there is i think a you know a distinct allegation and this is no surprise that li was represented to be an accurate statement of their borrowing costs that's the whole point of libel or no my friend i think is his strongest and most impact argument is that in their reply brief before the district court they got into some there are sentences that you can pick out that represent greater detail about selling versus non selling defendants with the the overarching point would be no matter what arguments they in fact made any attempt to amend the complaints would have been entirely futile on the basis of judge buchwald's actual rulings so i don't see how it is that one could say you passed up the chance to amend and therefore you have forfeited it but i don't think that fairly read the defendant's albeit forty pages long motion did discuss these particular arguments in any kind of  and it is worth noting in terms of the practicalities of what's going on here that mr cavanaugh doesn't doubt that we can allege these things his argument is in the kind of whack a mole way that affidavits are what's reflected in the complaint in the straightforward reason is that we didn't face this argument in any kind of timely way if we want to be practical about the fact that they didn't move to dismiss for person lack of personal jurisdiction the first time the complaint was go going around it's i think very hard to hold us to the idea that we should have made this futile motion to amend when it's clear that we can establish the relevant facts there's livingston you are correct about the can the claims that were dismissed versus warrant the state law common law fraud claims were not dismissed by the judge they have nothing to do with los causation which is a federal secure doctrine it was a lack of personal jurisdiction and if one were to say here that the defendants conspired to manipulate live work they then sold us the products we suffered a loss in california they marketed to us in california we bought it in california  these are claims subject to california law the idea that they are supposed to be litigated in the high court of london is almost facetious the entire place that anybody would expect expect this to be litigated would be in california and with respect to the other i don't think there's any doubt that your carry on doesn't dispute the judge buchwald's reason for dismissing that part of the complaint was wrong we have here a very different situation in which all the conspirators are selling into california unrelated conduct if they want to make for some for their they're welcome to try and do that we could you point me to that particular part of judge but wells opinion made it clear to you that it would be futile to to file your declarations earlier to move to leave and with regard to the selling defendants and those claims the floating rate claims ok so judge buchwald's opinion dismisses for a lack of personal just diction on the broad ground that the library manipulation sensibly happened in london and on that view nothing that we have to say about you know the nature of the different defendants activities makes a difference because her view is as mr cathy all said i know you bought it in california i know maybe they market it to you there i know you suffer the loss in california but today i tell you they submitted this to thomson reuters in london that you know that is an expansive view of the defendants ability to avoid personal jurisdiction and which none of these kinds of arguments make any difference thank you thank you both very well argue