believe are ready to start schwab the lloyds banking please the court for the plaintiffs when it comes to the antitrust standing issues in this case the defendants are asking you to create a direct circuit conflict with judge woods opinion for the th circuit in we think you should follow binsted particularly because the supreme court just quoted that decision with approval in apple last week identifying judge wood by name but really the reason to follow is that the facts are virtually indistinguishable just like here the did not transact directly with the defendants but they did hold contracts incorporating a price benchmark that the defendants manipulated lobe holds that that injury is proximate enough to come within the broad remedial text of the clayton act and that goes double now because the supreme court has just stressed that when these questions are close when there is any ambiguity on these kinds of issues they ought to be resolved by reference to the statutory text which is broad rate claims are different and i'm going to try to convince you otherwise but it's important to note that when it comes to floating rate claims there's really no possible intervening cause between the suppression of why border the injury that those point of suffer on the fixed rate claims and you know you have to accept schwab's allegation that the fixed rate purchases prices move in lockstep with live work because on the short term corporate  bonds they work directly to the matching library to figure out what the price ought to be alleges with sworn declarations that that's the case we haven't been able to even ask the defendants if they contest that point because we have been denied discovery on that point it may be that we're wrong about that of facts but we ought to get a chance to prove it on floating rate instruments are they issued during the class period during the period of suppression or before the period of suppression  back again there is some complexity the majority may have been made of that vast majority were already issued before the suppression even began so you have this super direct causal link where i'm already holding a libel or denominated instrument and the price term says you know libel or on the defendant's move why bore down of course i receive less interest because i'm holding that instrument there are some portion of them that were issued during the class period there you're going to have a couple of complexities one is that the library suppression may have increased between when you bought it and later and the other is that you know we just don't think that it's correct that you're going to get an offset in completely in the purchase price of that the ones that were issued during class suppression period i think your adversary would say then that that cause ation arguments is significantly more complex than where the bonds issued prior to the beginning of suppression i mean i think that is a distinction that you could draw i wouldn't draw it's two reasons one is as a legal matter i don't think you can ever really fault the plaintiff decision to purchase a lie board based bond as opposed to another bond as an in call that intervening cause that they're into trust injury you know this exact argument is made in mccready that the creation be able to recover because she chose to see a psychologist out standing and it's clear that mccready wants to analyze both questions is this the kind of claim that into trust laws are meant to reach and is it too remote so there's a separate heading where the st sentence is is this injury too remote and there are different kinds of claims and i don't want you to choose among your children necessarily in deciding which is better or worse but they are different aren't they in this in the sense that  in the case of someone who purchases a library denominated instrument during the period when the suppression is going on you do have this direct privity issue which at least to the simpleton like me looks like that you must be somebody who is inefficient and force or they bought the thing the price of which was being fixed on the other hand as you said it goes for the people who  already held my board nominated instruments look at a certain way more directly affected they've got something that they bought in good faith when there wasn't any problem going on and  then the price fixing conspiracy operates in such a way that they get less interest than they should have gotten under the deal that they made so there is this sort of direct causation without privity in a sense while in the other case there's p imagine maybe you'll disagree that which way one looks that it might affect which of these two groups of classes of two classes and that's what they are have stronger claims  question in this case although i don't think it's really presented the district court upheld the interesting thing is applied to all the pretty purchasers in the defendants have not appealed or challenge that determination so it's not really presented here in my view or in our view i would say that the causal connection that comes from holding the library denominated instrument is what really matters right lexmark teaches that what you care about is interest injury and proximate cause but privity i think is also sufficient because there's no possible intervening legal cause between the defendant's wrongdoing and the plaintiff's injury because the defendants are selling the price fixed good so pretty is not necessary when you really care about is the caus they were holding something they made less money on it than they thought they were going to make because of the suppression during the last period that's right and i think for those who are purchased during the class period that question is a is one of damages whether there might be some offset i think that is a question of proof that might be put to us but you can't really matters a matter of trusting it's possible that we were harmed just one other thing about the small portion you know at the time the gambling was decided really didn't know what the relative amount of money was going to be at stake in these non pretty claims essentially the worry was that the defendants had control over the benchmark but really only operated in a narrow slice of the market in the nassib liability just turns out that that's not right the vast majority of the harm in this case is related to the derivative transactions the bond holders are not going to be adding i think even material amount of liability to companies that have twenty five billion dollars in income each year so that concern just did not end up being presented i think could i ask another question rather abstract i'm afraid and i'm going to ask the same question what are we to do with the sort of moving target quality of supreme court precedent in this area and you know you were talking to us about the recent decision in apple and about lexmark which is an antitrust case and all and then we've got  not as any trust expert to be the controlling precedent because that's what speaks directly to the issue that is before us but then we have all these and i would my next thought would be the supreme court tells us d that we're going to overrule something because we said something in a lanham act opinion that wasn't their exact thing but that's applied to this case don't don't guess that that's going to change a precedent that you're bound by and you should live with  so do we even mention that case is that really volatile law that we should be applying or is there something that's changed in these many cases that have come down from us and from the supreme court since the briefs were filed so i mean i think happily enough there is a kind of resolution of this particular issue that's available in this case which is we're not arguing and have not argued that a been over or anything like that you should continue to look to the factors laid out in a g c to determine if you trust standing the difference i think is that the supreme court has helpfully clarified that those factors are four factors that help you identify proximate cause and that proximate cause is your concern at the end of the day so you can't treat those as like independent tests that you can balance in different ways that will eventually you know need to the conclusion that even though this point if it was proximately injured and had an interest injury because what these defendants did were nonetheless denying standing will that too i mean one of the factors is direct causation right and now you're telling me so you say oh it's still the same factors but it's usefully clarified and it sounds to me what you're saying is usefully clarified in such a way that only one of the factors really matters and the other three don't have any independent w you look carefully at the agency factors all of them do relate to proximate cause just in different ways you know point out that the st two of the a b c factors are pretty similar and pretty related directly to proximate cause the rd factor is to me that you ask the question oh somebody was directly injured by the bomb so given that that changes the proximate cause ation inquiry to somebody down the road you know you look at how close is their injury not is there somebody else standing around who says for sure good lighting yes i think that's helpful because it clarifies what more direct means in this context or you know i'm a more directly injured victim what we need is not just there some other victim who was injured in a way that we're more certain about what we mean is that there is someone who is one step closer causally to the injury and if your claim is derivative of their claim right then you don't have hurt and i'm really certain they have interesting so you don't and that's actually what's going on an apple two supreme court is not going to accept and it makes clear that you know a bottleneck monopolist might be liable on both sides even if we're quite certain  developers have interesting the consumers might too and then when it comes to speculative new the damages you have the same kind of helpful clarification what we care about is proximate cause we want to know if you have the kind of injury that we can we can see speculative leave would follow from what the defendants have done but that it's hard to calculate doesn't give what the supreme court called a get out of court free card so i think what the useful resolution of your question is to interpret those factors in light of proximate cause to use them to point to proximate cause and not as sort of independent independent factor tests that you could use to throw somebody who has a congressional cause of action out of court i guess i'd like to reserve the time i don't have  thank you just livingston may please the court the district court was right there are serious personal jurisdiction and i trust standing problems here and i'd like to begin with personal jurisdiction both because it's clear and because it will knock out all of the plaintiff's claims you don't have to reach these anna trust standing questions about a moving target which we don't think exists for reasons i'll say later on personal jurisdiction the district court correctly found that there was no suit related conduct anywhere in the united states and walden and wal teach that the defendants form conduct must make out an element of the plaintiff's claim even interfering that is narrowly as possible how can you even say that there is no conspiracy related conduct when there are allegations which we have to take as true that bankers in the united states for some of the defendants participated in the setting lumber and as i read it the district says yeah well but that's like  respond three background responses then i'd like to go into any specific piece of evidence you or your your colleagues want to talk about the st is at most it would only mean even if one of those documents existed it would only extend jurisdiction to that schwab you know i think schwab left was written against the backdrop of this court's decisions and birth a building and lease go which required something more than just some loose conspiracy or something like that oh good act in furtheran conspirator that's certainly part of it but it certainly didn't say that was enough because if that wasn't a conspiracy isn't tied conspiracies well i think that i think that the big difference as judge friendly's opinion and lease go says is that if someone is acting o direction supervision and control then it's much more like accessory principle each and relationship to use you know the kind of rico examples that you've written about but when you're dealing with something like a loose conspiracy which is just two people who don't have direct and supervision that's one in which no court has adopted the idea of that kind of conspiracy jurisdiction if judge judge livingston if you're if you did decide that in schwab then lease go would have had to have come out the other way and just exactly that question to my friend mr goldstein at the last argument you said i'm troubled by this because it would mean that partner kerman wouldn't would it would have been that would have been sufficient jurisdiction and you know i don't think that you decide  over ruled that i think you just left that to one side so one point i mean what about the entire criminal law does that have no bearing on this because i'm used to that law and i'm used to the idea that if one person who's part of a conspiracy commits want to act in a jurisdiction that grants what is usually styled in the criminal context as venue to prosecute the entire conspiracy in that place and you know we don't normally think of personal jurisdiction in the criminal context but in a conceptual way that's always what's at stake often what happens if you're arrested in a place that's very old fashioned it's  a species of tag jurisdiction but that creates personal injury that's what creates personal jurisdiction but in a lot of these cases somebody gets arrested in california on indictment new york and we bring him in here because he was never in new york but another guy when they says personal jurisdiction is different and that's so for a very simple reason it goes to the supreme court's decision and walton traces all the way back which is the jurist personal jurisdiction is always about a defendant's formulated conduct not those of others now it's one thing if you're acting really through someone in a principal agent like circumstance but no court to my knowledge has ever adopted anything broader than that and if this court i think should be the st and indeed this court's decision and waltman says criminal jurisdiction and personal jurisdiction in the criminal context is much much looser i mean indeed you can like render someone in like man while noriega even if they haven't been in the united states it's a really different concept and this court's decided that and like why why is it different and criminal a criminal is a much greater imposition on these folks who are somewhere outside the country it's a greater imposition but it's also a greater harm because it's a crime in the theoretical underpinning which bertha building even says is that mere foreseeability is never enough for personal jurisdiction but it's always enough for conspiracy liability so that's really it can i ask another i'm sorry i missed one of questions right you know i mean the complaint alleges  fact that one of the banks admitted that all the panel banks submitted their suppressed library to thomson reuters in new york right so this judge solvent i think is exactly the problem and it goes to judge lynch's thing in which you were saying you thought that judge buc submitter but just a money market trader saying he's in up on his belief he thinks that there were submissions made by rob a bank to thomson reuters now even at most if you credit that for everything it was worth it would get them rabbit bank it wouldn't get them the other seventeen defendants all of whom have sworn affidavits to judge buchwald saying all of this activity took place in london everything so and then i think she wasn't even waiting basically the robber bank statement versus the rob a bank declaration which says all of this took place in london what she said which i think follows from this court's decisions applying promptly is you know there was no actual personal knowledge there whatsoever this guy wasn't even doing live or submissions and here you've got a declaration from the guy who's doing it and the general counsel wrote banks saying everything took place in london so every time you hear one of these statements there's a lot of innuendo about what the people in london there are references to e mails from when it patterson subordinates talk with jamie this morning and we are doing a great job with the setting on the low side but we could just tighten up a little going forward would be a great big help to us on the u desk i get that that may not prove to be an overt act after some discovery but why why isn't that enough to suggest at the pleading stage that this could be an overt act  question is whether or not live or submissions were directed from the united states and those kind of cheering squad allegations on a particular day don't do that and the judge buchwald said she weighed that statement judge livingston against and this if somebody in new york who is higher ranking says this is the general strategy but he doesn't actually set the bids you're saying that doesn't matter no i'm saying judge lynch that there is no evidence and certainly no plausible allegation to meet the standard that that person in new york actually in any way influenced the bed and there's a lot of evidence in the record that says all of this from j p m c took place in london not the united states the all of this is the problem livingston quoted somebody high in the hierarchy as having led right if my boss surely leads but i'm going to grow job doing a conspiracy the fact that i decide whether coming in low is two point one or two fifteen doesn't seem to me to make me the only person who is important in making decisions right i mean what am i missing no i think i think what that what you're missing is the fact that that that you know there's all sorts of sharing that takes place but in less it actually is alleged to have implausibly alleged to have any impact on the underlying price and there  know if anything means go up not go down and it's only on a given day so our point is even if you thought that that meant everything they're saying i don't think would ever reach the substantial or meaningful requirements that is required and for what it's worth you have to argue to me anyway too much about the mandate rule whether that's part of our mandate is a somewhat different question but what we said was that there's a conspiracy plausibly alleged that has two goals  one being projecting financial stability the other being profits and let's even say maybe those are all they want i guess one question i have is why do you want to project financial themselves out is being able to borrow cheaply just like if i got a mortgage or something like that if i had a low interest rate i could say hey i'm a credit worthy guy right so in other words you project financial stability in order to get better bo costs and at the same time you're also directly impacting your borrowing costs and you're saying these two things have nothing to do with one another to know that when you're going out into a market in the united states and selling billions trillions of dollars worth of products that are essentially borrowing money from capital sources in the united states that it's not part of our deal here to be directly suppressing our borrowing costs because all we're really doing is trying to look good credit wise so that we will lower our borrowing costs your what sense does this make going or it makes the sense that you yourself said in when you join the opinion panel  recognizing that it's a really weird thing for the sixteen largest banks in the world to be net borrowers after all they're not in the habit of question are they net borrowers overall on their balance sheet or are they net borrowers of libel or denominated products which i have no idea what common sense would tell me about it if you have no idea your honor then you have to throw this out because they have the burden under plea of showing a plausible allegation that they are not powers that's what you said  the conspiracy was about projecting financial health and you know you're going to be selling a lot of instruments in the united states and others will as well and that that will cause harm to people in the united states will also you give you access to capital markets here is very important in a time of financial uncertainty i'm not i'm not even sure if it matters much whether you say it's financial health or the profits it seems like you're projecting into united states sort of like the national enquirer did in the california but i think what this court said in schwab the pages eight thousand seven hundred and eighty eight is that type of background knowledge is not enough mere foreseeability is not enough  and so now i agree with that but i'm asking isn't there more than foreseeability here you have certain knowledge you're going to your cars in the same way national enquirer and you surely jones reputation would be injured in california that they were selling california their newspapers but under the supreme court's decision in calder it's more than that it's got to be intentional and torturous and and most you have something like recklessness i guess or something but it's not to meet the expressing how is it reckless how is it negligence or recklessness to form a conspiracy to suppress a benchmark that has a direct impact on one's borrowing costs and then go into project oneself to berkeley into a market where that impact is going to be felt and sell millions of dollars worth of products but why did why is that recklessness rather than directly going into the markets of the united states with products that you have fixed the price of that's a question for them not for us in other words and it's their burden under tuam plea to say that there is a plausible allegation that that happened they have had yearly what of that what if what i just said isn't agreed as what happened that we intentionally did that we disagree manifesto of course very party actually most of the merits isn't it i mean the question suppress this benchmark number nd it is i think a matter of historical fact but no one contests that products denominated with that benchmark profit were sold in the united states by the very it come from corporations that engaged in that conspiracy now why is that just like oh it's foreseeable that that would affect the u s markets why isn't that manipulate library and make some you know make some profit but it's not expressly aimed at the united states and that's the test you said it that was the test and even if you think it's intuitive that maybe there's a document somewhere in there that they were aiming it at the united states they've never been able to come up with one that's a problem there a difference between the contacts in california right and i think that paragraph i haven't read it in a while but i think specifically says nash nation context may be different and aiming at the united states aiming at a premier capital market at the time financial uncertainty and wanting to be sure you have access to capital there the aiming might be a little different than in california so you said that if even if the defendants knew it was quite likely to reach an economy as large as the united states that does not mean that the defendants conduct in london was expressly aimed at this country and that's exactly where point so you know maybe they've demonstrated some global thing but they have not demonstrated aiming at the united states and that is what is needed for this effects doesn't spring part has been really cutting back on the effects of simply saying it in person i sleep this way so would really caution you to not go at this if i could turn to  invitation to say you've got to follow the seven circuits decision and lo i think you would be running headlong into you know billions of dollars of liability that seven west fifty seven dollars and indeed go point to talked about for each category of defendants the district court here distinguished between those who incentives whose instruments incorporated live work due to defendants choices such as the o t c plaintiffs and those who incorporated lie bore as a result of independent choices of rd parties now judge lynch you asked and said well there's a lot of confusion in this area so we'll start with lexmark lexmark i mean this court just a couple weeks ago post lexmark and seven w fifty seven cited the same exact four factors and i think call it part of the issue but i do think it has a different analytic doesn't understand this you know what you're what you're telling is kind of what i was asking your friend which is we've got a case that says this is what the law is and don't we have to follow it and i was going to ask you and i guess i'm getting your answer it's at least that but it's also i think a little more because you're also asking my friend and saying well the difference is when in lexmark you're really asking can anyone sue here in interest standing inefficient  course or this part you're asking who is the best party to sue and compare it's a comparative analysis and so for that and for the reasons that we explained in the brief you know the idea that you can have this kind of cost of action which if you allow them to sue and this is what you recognize and seven less fifty seven you are going to allow any one of the people on the wrong side of the lives transaction which is literally trillions of dollars in the economy to be able to sue and that kind of through in through about something else about an expressed injury and these are two analytically distinct things and i could imagine maybe one day the court connecting them but they're read a treatise another say no they're really treated as two different things in particular brick is about who can sue at all this is about who comparatively is best suited to sue besuited to sue and the reason why this is so important is not just the trillions of dollars in liability it's also the fact that the defendant who had their claims dismissed on an interest standing never profited a dollar off of this stuff so if these are bonds that are issued there are financial instruments that are issued by rd parties sold by rd parties to the pla the defendants have nothing they don't get any revenue stream off of that differ from the general notion of umbrella standing i mean isn't that i mean i don't know if i can cite supreme court case but aren't there quite a number of cases and maybe some that have tried to keep track of all these things you're in better shape than i am to tell me but if if we were talking about things physical things that get sold aren't there plenty of cases that say that if people conspire who are cartel control most of the market to fix the price of brooms trucks or whatever and someone buys a truck from someone not involved in the price fixing the cartel is responsible for that are you saying that's wrong or are you saying that doesn't apply to something like this we're saying about so st it's wrong because actually there are only twenty seven circuit cases that adopt umbrella standing in the lion's share of cases rejected indeed what sounded a lot of concerns about it and citing the midwest paper decision from the rd circuit about the open ended liability that would otherwise and here so i definitely don't think that the trend of the case or anything like that is anything in favor of umbrella standing so that's point one and then point two is i don't think that those physical market cases really apply here because in a physical more markets or at the law mercy the laws of supply and demand and the only way you avoid a price impact from a defendant's conduct is if you have some sort of preexisting contract not tethered to the current market by contrast here the only way in which the plaintiffs are injured is if they were a rd party has made some independent who purchased directly from that and so that's their best argument on that obviously then runs into that other problem of the newman case because if it's pretty suppression purchases it's hard to show that they were injured in any way but with respect to that under reckless i think that's their best argument unfortunately they have no case that actually says that the timing matters that the real question is whether or not someone bridge the gap between plaintiff and defendant so if you look at hemy group or you look at all the two supreme court decisions on this they say that's the relevant question is there a direct connection is there something going on between the plaintiff and the defendant or does it require a rd party and they don't ask about the timing so for example when you say there's no case this is a somewhat unusual case you know it's so hard to say well something like this never came up in the world of wages and so so there is no case like this oh yeah right but the question is how do we apply some basic principle let me try to follow it and see what your reaction is to it i would have thought that one reason why there might be a difference in timing is that is i people are making decisions during the suppression period they kind of know what library is they also have a notion you know at that moment they don't know what the number is they also have access to some of the information that started people wondering about this conspiracy in the st place but there are other benchmarks out there that are at different levels so when i sit down to decide whether i'm going to lend you money at a certain rate i'm alternately interesting i've got this floating rate thing and when we get how is that going to be impacted in the future by what benchmark we set but i also know perfectly well what the interest rate is today and if i decide to incorporate live more rather than something else if i set the premium above libel or for that as this is the rate at which i'm prepared to lend you know that that starts to sound like it's not you know it's not like setting the price of trucks or broomsticks when i st got into this and started reading my intuition was exactly like you are it's why i went that makes it well and that be the way that this should work it turns out though actually this is something the courts have spoken on in particular and having a group with the supreme court says is that direct relationships in foreseeability are two very different things and this court applied that and the local laborers case to say that even if a defendant willfully intentionally is using a rd party to cause an antitrust injury if you're doing it through the rd party that breaks the chain of causation it is an indirect relationship and the reason for that i think the reason why this sounds a little counterintuitive but i think the reason is because when you're dealing with efficient force or standing you're dealing with treble damages in the end a trust contacts which are massive and you're trying to ask who is the best party situated to bring the claims and not lead to a massive specter of liability and so that's why i think the courts would say oh well that was where i think you said in the in this in the local laborers decision that even if you know what the price impact would be as a defendant that's not enough it's leading decision in this area and it really analyzes basically every argument that we just had for example there is both a transaction specific part of the price and the comix index price in each of those contracts they're built the exact same way as the library contracts there also is this argument well aren't the plaintiffs the intervening cause of their injury because there were other benchmarks they could have picked for those contracts judge what explains that they can't be right buy from the defendants doesn't that why doesn't that instantly can for and i trust standing on anyone who engage in a transaction pag to libel or or can you help me understand what lines you would suggest  drawing so i mean i will say one possible consequence is that if you have a lot more denominated instrument you do have interest standing and that is because the injury is direct one possible line to draw or unexpected or unforeseen unknown liability of any kind this is the market the defendants were trying to extract a benefit from and these people are you know it's like intentionally hitting somebody car who's driving it trying to hit that hurt the driver and the you see the passengers sitting there and saying well you know i don't want to hurt the passenger so i'm not liable for their injuries you know these are the exact same kinds of people they're just borrowing from somebody else you know you're going to harm them when you do it and so you have that kind of liability if you had you know off the grid derivative transactions that's what was expressly worrying about things the defendants couldn't have bond portfolio not denominated in the terms and then suffers harm because that portfolio is devalued in a way that allowed citibank to seize it you know that that is a more extended chain of causation on any measure just a couple  of things standing up apple is an ambiguous legal standing decision illinois brick is a standing rule and we know that because in a brick affects only damages you're entitled to an injunction not withstanding illinois brick if you don't have antitrust injury you can't personal jurisdiction if we find knocks out everybody and the and for us the ending issue affects only certain categories of people who are before us at the moment  yet you didn't address that at all i'm kind of wondering like why don't you want to say anything about what he had to say about my questions so he had a big argument then twenty minutes talking about no one percent interest action and you didn't talk about it on your st round and you decided not to talk about it on the nd round care to say anything well i mean i think it became clear in the briefing that this was going to be a case about what the in the reply bottle and briefing that this was going to be a case about which means and i didn't think i had very good chance of convincing this particular panel of what schwab means so but i will say there's a i'm happy to try so a couple of things there are several acts that we say are in furtherance of the conspiracy that happened in the united states my colleague did at one point acknowledge that judge buchwald was weighing the evidence it's really clear from her opinion that that's exactly what she's doing she believes the defendant's declarations she does not believe the evidence we have this is it documentary proof we have the pleading stage we tried to ask the defendants please tell us who you send submissions to in the united states or you could publish them and that's impermissible jurisdictional discovery we're not telling you now it's not withstanding that we've got none of that we still have all these actions the stuff involving j p morgan is particularly clear because jamie patterson if you look at those e mails is clearly the one in charge of all of these communications and j p morgan is a u s bank headquartered in the united states there is a reason inference that the directions about something as important as libel or suppression are going to be coming through or from executives in the united states and we're just we're at the pleading stage we're just trying to create a reasonable inference so that we could ask the defendant some questions and get some documents about this point so i don't think that's really tech markets and you know i i think the best piece of evidence in this regard is the charm offensive from the b b a the person didn't go to switzerland but he traveled to the c m e new york fed to convince those folks that live there was still a reliable benchmark that is because the conspiracy is targeted at u s debt markets where the defense are going to raise the debt capital that's going to prevent them from failing during the financial crisis charm part of the pleading allegations  demonstrate that yes absolutely now they're not in a complaint because we still haven't been counted we've to amend our complaints to add the stuff you know all emerges after gambling and i suppose even after some of that comes out after schwab because you know th stuff is all secret you know some of it was at the hayes trial in london you know this is why we need discovery on on these and other issues i think we don't actually need more discovery of personal jurisdiction because quite clear we haven't also every single one of the defendant territorial you know you have to do anything in the united states to be liable so you're going to create a huge constitutional controversy if you say actually the u s can't reach corporations who are actively selling in the united states because they're headquartered abroad so i don't think the jurisdictional issue is particularly close just one more thing on if you christine and i don't want to forget you know as i acknowledged i think there is a distinction that can be drawn between the fixed rate instruments and the floating rate instruments for purposes of federal law but the current rate act says in so many words that it does not matter if you are transacting directly with the defendants or not and the california supreme court has made one ambiguously clear it is not going to follow federal law on this issue so even if you view this as problematic for purposes of federal law i think the california claims have to survive i mean it's one thing to say you don't have to be in privity you have to be dealing directly i didn't think that was the problem with the fixed rate issue so much as if you're looking for proximate cause ation it strikes me that it is in friends and it may be something that could be proven i'm not sure how this all falls at the pleading stage and so on but when you're talking about people who say i'm go to lend you money at three percent nine percent fifty percent whatever the it yeah in some way i assume a market  for other debt like floating rate debt is going to have some impact on that just as it's going to have an impact on the price of stocks relative to bonds there's all kinds of things people can do with they're money and if you  manipulate the price fix one dollar kind of piece of that market one problem is maybe you price fix it to the point where capital starts to flee into other forms of music people using their money but was the reason i was pointing out that that appears in the current act is that that is the line the district court purported to draw so you know at least that much of it is not correct i would say as a matter proximate cause the that concern you put your finger on is exactly the right concern at some point it becomes too attenuated the kinds of instruments that are at issue in our a very particular kind of debt is a short term debt is a debt short enough that there isn't like a matching libeler temper and bloomberg even has a tool that allows you to interpolate what the library would be if there's no library that matches the exact tenor of the short term bonds you know it's a month and a half and there's no month and a half lie borke there's a tool on bloomberg you can use to figure out what the month and a half why were essentially is because this is the practice of pricing these kinds of short term instruments by reference to libel is so widespread in the industry schwab's allegation has to be true for present purposes is that it's as though the bond said library plus we just don't have to write it that way this is not a case of fixed rate instruments this is a case of a very particular x ray instrument absolutely and i think that that matters i mean no one has actually it will matter it makes our lives that much more that's why they passed a very big bonus i mean i think this is this is also a case about floating rate instruments i mean those are the ones that the district court purported to take out of the case they are a small sliver of the liability but they are the issue for many and i think the causation there is really clear as to the fixed rate instruments it is it is one more step that has pointed out additions about these particular instruments so we're not asking you to go very far but that is the further complication i w