hear argument next in case eighteen four fifty nine emulex corporation versus john de b t n mr gar thank you mr chief justice and may it please the court the ninth circuit in this case recognized an unprecedented conferred private right to recover for negligent violations of section fourteen the of the securities exchange act one thousand and thirty four for two independent reasons we would ask this court to reverse that decision first as the government itself recognizes this court's precedents compel the conclusion that section fourteen he does not confer any implied private right at all if you go are why should we case this court present confronted the exact same situation except we're actually in a much stronger position here there are the petition for sir was on the question of whether or not the standard for an implied private right of action for aiding and abetting under section twenty five was recklessness or see enter the serve titian didn't raise any question about whether there was an underlying implied private right for aiding and abetting this court itself raised an added that question it granted and it resolved the case on that ground now we're in a much stronger position than central bank because first of all it's undisputed that we raised this at the search states the broader issue argument is fairly included within within the question overrule its decision about private rights of action it's really more just part of your argument about the negligence standard as and no i would disagree with that it's a separate point flag and we do make it on the next page as well so there's two references and i  e it's not a free standing argument but the point of this statement in our brief is if you really could read section fourteen e two compass negligence then you couldn't possibly have any private right of action everything comes crumbling down and weep you know you're saying that now but i mean i just want to add to it just what kagan said you told the ninth circuit i take it quote that your client did not dispute that section fourteen provides for a private right a fact that's correct uk and we do that we did say at the panel stage that we did not dispute the existence of the private right because of course we couldn't my circuit precedent had recognized that right we did not i think it's important to concede the existence of a private right i think there's a difference between saying we don't dispute it and we agree with it now and i'm sorry just kagan oh i think you it's the same question right and course more broadly under this court's precedents we would say clearly this court has discretion to reach the broader issue in central bank really couldn't be more uncertain un discretion but you don't answer why are we warning you rewarding you for not raising it adequately be rewarding you for mentioning it in two sentences in your search petition and not asking us to take it as a separate question presented where should we draw the line as to when we stop presented if you look at page twenty of our serps titian it was very explicitly raise eeling with what i just asked is the broader issue is this going to be right almost any question is throw the kitchen sink if you choose the question is you didn't raise it as a separate part of your search petition then raise it below why should we or joke first of all we did argue interception but as to your broader question justice and more you should do just as you did in the central bank case in order to provide for the intelligent resolution of this question i was in the year i might have taken a different position well in wyoming and the directors obviously did and the reason is this because this is an issue that is interdependent with the question of whether or not there could be inferred private right of action for negligence it would be silly for this court to say there can be inferred right for negligence but but the but everybody would recognise i think that's what that's what the government says that there is where the government says there's no private right of action at all no no they say that the statute involves negligence so we can find that it involves negligence and leave for another day whether there's a private cause of action or right only belongs to the ses to the s e c i think where i would take issue with justice and more is the governor in the first part of the government's brief i understand addressed the question of what would be the standard in an express action brought by the i c c i don't really understand the government to be saying they think that in an implied private right of action if it exists you could have claims for negligence they sort of are really dodged that question and ultimately ground their brief on the broader position which we very much agree with their letter says simply no private right of action at all and so i think you know again to answer your question we would take issue with the notion that there was gamesmanship here we we were not required to raise it at the p stevens point out in his dissent through hundreds of judicial and administrative decisions recognizing an implied private right of action for aiding and abetting on a rule ten b five but this court applied its precedents including its more modern precedence look to the language of section ten will ten be five and held that there could be no private right of action implied for aiding or abetting and the same analysis here indisputable i think leads to the conclusion that there is no implied private right of action under section in might my my friends over here i'd take page forty for the brief us to not as to concede that they cannot point to any rights creating language in section fourteen and that's because it's framed under fourteen a and it rational to distinguish between a from fourteen even for private right because if you have fourteen the cont fourteen so you wouldn't look at the language of fourteen and say oh they musta meant what congress said in fourteen different second of all the whole argument that because we've got an implied private of action under fourteen a we need to have one hundred fourteen  is exactly the argument that this court rejected in sand of all as to pork the court there's a duty upon the courts to effectuate congressional purpose congress saw a guy up with respect to statements in connection with tender offers in  sixty eight it filled back up by adding additional disclosure requirements under section fourteen if for tender offers you want to look at the legislative history congress had in mind public in foresman of that provision there's no basis for this court question is is there rights creating language but beyond that even if there is not rights creating language if there is a legal context that indicates that congress meant to create private rights of action then we should take that legal context into account and and here it seems that there are at least two features of the legal context one is the one that justice ginsburg said which is this was meant to create a gap as to treating tender offers the same way as using proxy statements with respect to mergers and congress gave no indication that it wanted to treat those differently quite the opposite that it was gap filling and a way to unify the field and the second is that congress uses the ten b five language after every court has to why did the ten b five creates a private right of action and i think given those two things out of it doesn't say throw out the statutory interpretation tool box and just look to whether there's rights creating language it says be a sensible statutory interpreter and a sensible statutory interpreter would consider both of those two things and so here i think the most important point as to that question is that the text of fourteen are we looking to the text for what congressional intent is and to the extent that that's the issue what the congress intend with this language well it isn't aren't all the facts that justice kagan put forth more meaningful in terms of congress 's intent because of congress didn't agree with this it had a whole lot of years to change things around but it hasn't well if that's where you're coming from just sort of mine or then you should agree with us that private right of action for negligence because the status quo was courts had implied right of action under section fourteen the before c and so that's where you're coming from then you should decide the case on the narro a or and hold that fourteen any implied right of action required as as to or act in the i'm sorry just keep going as to boruc and the timing again this is the same argument that was rejected in san sand of all the argument was wait a second when congress was debating title six this court decided boruc so clearly congress had in mind when it was passing title six in that context asking for more construction of title six in the and replicates that language then that counts as a pretty strong indicator that congress has meant for the same result to obtain it mention that in the context of canon but here's why that doesn't work here and you refer to the text makes clear that it's going to take its content from the rules and regulations that are designed to implement it and then ten b five comes along and essentially gives ten b it's content and all of these courts go the exact same way whether it was right or wrong and say private right of action follows from that and then congress replicates that language with this court in one nine hundred seventy one which was after the time that congress passed the williams act and section fourteen framework is that congress is looking at something a particular set of words that has been found uniformly to create a private right of action and then congress writes those same words again i would disagree with you because the words that created and everybody understood that ten b five was the governing standard and that private rights of action went along with that governing standard under if that's true it's under the boric type framework the courts would supply room it is when congress didn't  is questions to pick up on those and see and of all in distinguishing the prior cases it's two of those involved congress is a nachman or reenactment of the verbatim statutory text that courts had previously interpreted to create a private right  of all as setting a principle which i take your point on that you can understand that but if we do then your distinction of it is statutory tax versus regulatory talks right in this case would be an expansion of what the court said but even  substantive scope is defined in terms of regulations by the terms of and be itself i would say it's a different statute and this is important because if you look at fourteen a in fourteen fourteen a gives  see authority to pass rules yes you see has been very judicious in describing situations where the violations are very limited and so they they've established kind of a brake on the sorts of things can be violations yes going sorry context of boruc fourteen that informs fortini because fourteen e's written completely different than fourteen but i could that don't you think that the point of sand yvel and end and it should be the point of all our decisions is yes we want to know what congress was intending to do here but we're not going to throw out the whole statutory interpretation tool box except for the text because sometimes context matters a great deal in understanding text and what we really want to know is what did those words mean when people and acted those words at that time and for us to be able to answer that question the statutory context is extremely i think sanibel answers that by saying yes or contacts and forms is relevant as informs text but i think the broader point here is that this court has been married made very clear that when it comes to recognizing implied private rights this is a very substantial perilous endeavor and so there are very explicit limits on one the court is going to do it and it's not to look at this question as it might any other routine statutory interpretation question it's going to look first are the rights creating language here everybody agrees not there second is there any enduring indication the believe that congress intended to private remedy and if you look at that question here same answer no congress clearly in the securities laws intended public and foresman so what are we left with left with boruc which is the heyday of this court saying courts have not only can but have a duty to alert themselves to filling congress purpose will tell me if i'm and i'm misinterpreting what you're saying but i had thought that that the line that santa drew was look before now what congress did and what the courts did was they just basically said oh look if it if i if a private right of action kind of fits with the purpose of a statute as broadly defined then we should have a private right of action and this court said absolutely not to that endeavor but and said it has to be a question of statutory interpretation what it congress intend when it was passing that act but you were suggesting something more you're suggesting that the usual tools of statutory interpretation that we use sort of go out the window when there is a last context you know all of a sudden context doesn't matter we just look mechanically at the words because this is such a for what inquiry and mike am i reading you right no i mean the pools of statutory construction are pertinent in answering the questions under this court's decisions animal is their rights creating language here rebut agrees that there is not is there reason to believe that congress otherwise intended a private remedy no and the i would say here what's unprecedented about this case is that we're not aware of a single instance in which this court has ever implied or recognize an implied right about action that the enforcement agency itself didn't recognize and if you think of this in a steel seizure type framework to the extent that this court has authority to recognized implied private rights this question with context of an implied private right and said that there was no basis for determining the similar language of all ten to five to confer negligence and to your point justice kagan if you approach this case from the standpoint that congressmen to lock in will tend with this when you get back up i mean look the language of fortini that we're talking about is the same as the language of can be bought and can be five copied its language from  section seventeen yes seventeen a ok so now we use this language to get it proxy statements don't we and proxy statements can be ways of taking over a company so why would you want to have one set of language meaning negligence where they try to take you over by proxy statement but a difference it but the exactly the same words not negligence when they try to take you over b fourteen borrows the language of ten five and we have all along interpreted twenty five to require c enter why shouldn't we require the same standard in your well think that  his question of mr gore so that's my question to you you're talking about it is policy i'm talking about if we're going along the room of saying what does congress  the language first of all of ten b five had not already been interpreted that way the court's decision and ernst and ernst which interpreted ten b five came after fourteen us and acted so we don't have that settled meaning at the time and i think beyond that just looking into that decision the court could not have been clearer that the language of rule ten b five itself would be appropriate to have a negligence standard but there was a separate constraint of the language of section ten b that separate constraint doesn't apply here and that's why we think the better analog is section seventeen a which the court considered an aran and said negligence now i do want to address the question whether there is a private right of action before you get to that just one more question on  where i understand the urge came later but normally we do read the same language to mean the same thing so i'd like you address that problem well and then second second problem is i understand the point about negligence being what we normally assume congress to use when it's a civil matter but the penalties here are pretty significant available under the section  maybe equivalent to and worse than a lot of criminal offenses i'm sure a lot of people would rather be found guilty of a misdemeanor than this particular offense so why wouldn't we use a higher than true given that so on your first question the language can't always mean the same thing because we already have we mean different things and seventeen a and rule ten b five and the answer is why did it come out differently for those different provisions section ten be a separate language to which is this more like this is more like seventeen  on your second point congress already accounted for the potential different mens rea as standards in the tiered system of penalties here so there are very low finds that the commission may seek for negligence and those are enter found so i do think congress already considered this in the enforcement section at it turning to the private right of action issue i want to address the question just taken just as kavanagh that you were discussing we don't think that the fact that there was a private right of action under ten b five is enough here and there are really three reasons the first is that the private right is located in section ten b not rule ten b five and that's not just a formality in this case it's only section ten b like section fourteen a that actually has a textual hook for a private right of action it's section ten b that discusses for the protection of investors and that's something that this court noted in act was actually a reason for finding a private right there and of course i understand the distinction as a distinction but not why it matters because what we're trying to find out is what congress was doing and it seems to me that when you have ten b and it the content of this is going to be done by the rules and congress enacts and the agency in the next ten b five and everybody knows that's the substantive standard and then all these courts say that as to that substantive standard ten big gives a private right of action and then congress comes back and recites the substantive standard doesn't congress think that the private right of action go with it you would have to be like a super duper super lawyer to say oh well it's a little bit different because the substantive standard to split up from the private right of action there's just no reason why congress would have thought that well justice kagan again the question is not just what congress expected as a matter of contemporary legal context it's what it said and it didn't pick up the words for the protection of investors that this court had identified in poor aca as a reason for private right of action that's point number one point number two what it did use here is common disclosure language that appears throughout the securities laws it's not a case like canon for there actually was language directed to the victims in that case the south was no person shall be discriminated against on the basis of sex and that statute had been th interpreted to have a private right of action it made more sense to say that that meaning was encompassed in those victim focused words and then the third point is that this type of provision that involves misrepresentations and omissions of material fact appears as i mentioned at a number of places and we know it often does not create a private right of action it doesn't create a private right of action in section seventeen a of the securities act it doesn't create a private right of action in section two  six of the investment advisers act that was this court's decision and trans america so it's not like congress picked up some sort of clear code word and incorporated it into section fourteen absent that the commission feels that the result is decisions came after nine hundred sixty eight that's correct but that's the argument on the other side and that's correct that they may not have been decided at the time but i do think they illustrate that this isn't some sort of code word or some sort you were the respondent here would you think that that claim was properly before us is that the precedent you want to set so we think as an ordinary mordor as an ordinary matter this court does not consider questions that have been then neither pressed nor pas upon the reason why we think in this case it would be proper to consider it's really a combination of three circumstances the first at this point it's now been fully briefed and erred the second is this really is an antecedent question to the scope of section fourteen e and then the third and most dispositive one is that in central bank in identical circumstances the court found that it was appropriate to consider this question so in light of that combination of those three  did something someone else in the current so schreiber do go on to consider the scope of section fourteen e we think first the question whether there was a private right wasn't presented there so it wasn't necessarily antecedent in that respect and scope question in that case was about whether fourteen he more or less how substantive fairness provisions which wouldn't have been affected by the existence of a private right i think here it's particularly correct to think of this as an antecedent question because most of petitioners arguments for why there has to be a sea enter standard turn on the existence of a private right of action and so that's why we think that it's difficult in this case to go on and assess whether sea enter or negligence is appropriate and without addressing that antecedent question that said if the court thinks that this was both forfeited and it doesn't want to exercise its just question it could just sign that negligence is the appropriate standard here but only if factor in thinking about the state of the law yeah i would know there are no real rule or world problems is one thing if there are some that the commission sees them it's good to hear those so first we think the most obvious real world problem is the existence of a private right of action has led lower courts to create the c n tower standard which we don't think is the proper scope of the commissions and force and authority and i would just flag that as a general matter in the private rights context it is a pretty common situation in all in transamerica that the lower courts are uniform in finding a prime private right of action that this court then says doesn't exist because they've been following the earlier precedent so i do recognize given  i believe justice ginsburg's question earlier that this does create an anomaly between fourteen and fourteen in terms of their enforceability but that's an anomaly as a result of sand of all thank you coun guys are thank you mr chief justice and may please the court of the we submit only one question is properly presented this entire dispute can be resolved look into this court's usual tools of statutory construction and the text context purpose and history of section itself where it said that a stand alone reading of rule ten b five would in fact support a negligent standard as for the private right of action this case presents the exceptionally rare situation where congress unmistakably tended this very statute privately enforceable despite not including an express private remedy when we know that that was not the right approach right in boruc what borek resort or not be decided the same way today boruc may not be decided the same way today but again our position is not rooted in bork at all we agreed that sand of all rejected for x method and we were not trying to revive it we're looking specifically at the usual tools of construction and my friend suggested today he agrees that congress this was what i believe a d from today's perspective what we did back then was a mistake and it's one thing to say well it's it's done you know don't necessarily overrule or just because you don't view it differently now but there certainly are a strong argument could be made that you shouldn't repeat the mistake you shouldn't carry it you shouldn't expanded even if you would have made that same decision back under the i think is just the school you called it the old regime it exactly your honor at the end if our position was that boruc methodology because this falls in section fourteen t that i would agree with you and we should list that is not our position at all our position is that if you look at congress's intent and as canon confirmed the question is not whether congress was correct it's how did they perceive the state of the law at the time but it wasn't the statute it was the rule language and you know this type of provision is used in multiple places where it's not been recognized to create a private right of action so how do you respond to those arguments on the other side so for looking first to the fact that this came from a rule i don't get that i think that is a distinction without a difference i don't know why that would matter the question is did that rule have a settled legal meaning at the of the statute these days and if it's not a private cause of action we're not overruling ones that recognize private rights of action before but we're not expanding it either the central bank makes cycling lots lots of other can we fully agree just anywhere whether that particular language has jurisdiction or not but as both justice alito dissent and just a kagan's majority opinion confirmed when congress uses words that have been attributed as having jurisdictional significance then congress is understood to import that same significance have the same meaning and same effect in the new but it's not just a question of congress whose words were even congress whose intent it goes to the authority of the courts to engage in the sort of fundamental law making enterprise that inferring a private cause of action involves in other words the reason we do it differently is not because we have any different view on the tools of congressional intent it's because we have a different view on the appropriate limits on our authority and i don't know why if exceeded those limits you know back in the the battle days why why we should feel free to exceed those limits today mr chief justice i think exceeding the court's limit is doing something congress did not intend the ultimate lodestar force and of all was what is the statutory intent and i don't think that sand of all said he threw out all tools of construction unless it's a one way ratchet it says don't imply right of action the question is what did congress intend when they use a specific language in fourteen easy and i don't think that is th necessarily the court stepping in and saying we think this is a good idea to advance the purpose of the statute even though it's not what congress had in mind our contention is that given it's highly unusual this is basically a perfect storm of factors that come together that show that congress in eighty eight expected fortini and understood that it would be privately enforceable and why didn't they do it then the the i think for the same reason there that they and fourteen a they didn't do it and in some other statutes of the court has said can be privately statute were passed with the original thirty three and thirty four act i would say that we probably lisa's case the reason that we win this case i hope is that by the time the congress acted in one nine hundred sixty eight it was using words that were understood to have  private right of action that was the consequence of using that text and again this is cut from the same cloth that the court uses for ordinary statutory interpretation all the time what extent should we be take cognisance of the possibility that a lot of lower courts having created this filed class actions and immediately dropped as soon as maybe the lawyers get their feet and to maybe address that some lower courts have heightened the cme true so at the end of the day  if you if you look at our brief in opposition we went through the lower court cases and showed that these were cases that rose under the second clause of fortini and were premised not on negligence but on c n n or based allegations and in response might very able friend in his reply didn't take for the negligence and a bit but there is there is no private right of action and the seventeen is there there is not justice ginsburg but to be very clear at the time of the williams act in hundred sixty eight court said that seventeen a was privately enforceable my friends haven't identified a single case until more than a decade after nine hundred sixty eight after his fortune he was enacted where any court said it wasn't privately enforceable which i think also goes back to your other argument the precise is really just a different form of that same argument which is well congress would have fought based on the state of the law and that kind of general point was rejected in sin of all i see it i want to be extremely clear about guy i think it's very important we are not making at the time travel argument we're not making the contemporary legal context argument we've got and after argument is is that no the pattern the pattern after an argument is very different it is very different to say why isn't courts would take all of these statutes and somehow on their own differentiate between ones that really deserve the private right ones at that that is not our argument our argument is looking to the specifics of section fourteen the tax a congress uses the context in which they used the entire point was to harmonize fourteen you with fourteen a now maybe four act was wrongly decided who in congress acted in one thousand nine hundred eighty eight they knew that fourteen a was privately enforceable and we still haven't heard a single reason that any rational legislative body would expect fourteen a for proxy solicitations to be privately enforceable fortini not so in your prior perfect storm mr geyser you have the fourteen a fourteen and allergy you have the replication of ten b five language is there a private right of action and its feet over the elements of that private right of action without so much as hinting that it wasn't privately enforceable i don't think the court overlooked that the court cited piper three times where the issue had been previously reserved will but these are the lower courts it seems to me is readily explainable by the fact that they were following what we had said and then were just so categorically reject later in the subsequent right about two cases what mr chief justice said didn't happen in the context of seventeen where courts borax methodology is that this is privately enforceable and they said understand of all now it's not but fourteen estampes on entirely different footing because of the text use and it's not just the fifty year history congress is amended  probably was this case about but our point is that's not all we have central bank did not have congress importing the verbatim text from an earlier provision that was well understood at the time to be privately forcible and central bank didn't have what would be an incredible anomaly in the securit laws where congress is trying to harmonize fourteen and fourteen and we do that by creating this stark discontinuity where one's private wing forceable in the other isn't that was the primary means of enforcing these provisions at that time so it makes very little sense  congress would do that with no indication but to go back congress has sense amended the securities laws and three times since fourteen is an act meant touching directly on the subject matter it did at the first time in one nine hundred seventy where it out of the second sentence of the statute at that time of action and the court's logic was that they don't because they weren't the classic congress had in mind was trying to protect and reason in reserving the question they didn't reserve it in a way of we have doubts about this they said the dissent is accusing the majority of undermining the statutory objective because this would leave the statute not capable private enforcement by that protected class and the majority batted it out of hand by saying we're not deciding that question that only makes sense if the court assume that those shareholders would have a private right of action the practical enforcement of the statute makes very little sense unless they thought that it would be privately enforceable but again we don't even need that when you fast forward to one thousand nine hundred five in schreiber at that point this is apparently such a settled question the court doesn't even flag for the lower court don't misread our opinion and think that we're embracing this right of a there's not a hint of that and it's presume because at that point it was so well settled that this was privately and forcible the court didn't even think it was worth mentioning but then in one thousand nine hundred eight only three years after schreiber again congress created an express prohibition on insider trading and he alleges congressional report they said that this insider trading probation overlaps with existing rights under the securities laws and the case is considering them and if like section fourteen precisely and then congress had an express reservation saying that this new express remedy is not meant to take out any implied private rights under the act so congress understood at the time that people were suing under section statement safe harbor i think this is really critical in the forward looking statement safe harbor they said that certain statements now if they're forward looking will not be actionable in private rights under this chapter based on untrue statements and material omissions and they excluded from that safe harbor statements made in connection with a tender offer that is the exact subject matter of section fourteen as far as i know it is only the subject matter fourteen so congress not only said that these are private rights that are premised on untrue statements or material omissions in connection with a tender offer but they said these get a leg up these aren't even those or even fall within the safe harbor for forward looking statements so if you do a forward looking statement in the context of fourteen those actions are still preserved so i think we have fifty years of a member compress it and we have the petitioners raising an issue that they expressly conceded below which i do think distinguishes us from central bank well they had no choice in the ninth circuit right no mr ch i'm not aware of any ninth circuit decision that looked at whether this is privately enforceable under the court's modern scheme i submit if the knights are going to done that they would be are they would be making the points that we made today and i believe they reach the same result but that is an issue that's open to my friends in the ninth circuit and they did not say we were bound by circuit authority they didn't drop a footnote saying we plan to challenge us for further reveal that they waited until we hear where they made a point that did not cite a single one of this court's recent authorities didn't say that it spent under cut didn't see a certain sort of authority this is binding until it's over turk right i'm sorry circuit authority is binding until it's overturned just because there's an intervening there a lot of intervening decisions from this court lots of others that doesn't render a circuit authority ineffectual well no actually in the ninth circuit and the next there is a very aggressive rule on this is that if there is intervening supreme court authority that takes the legs out from under it sure but it has to be argued and it has to be so misspoke you know there was present on this my point is that there was nothing that prevented the petitioners even at the panel stage from raising the so what about central bank i mean one response could be don't repeat that again but do you have any other response to or their raising of central bank well i think that i think that the prime responsibility set as well as better than i could i don't think just the fact that the court can do something means that it's a prudent exercise of its power especially in a context where you have fifty years of broken authority and three amendments where congress decided not to disturb that of thought in terms of the prudential approach to the consequence of this is going to be with respect to the private right of action setting the standard for that a bit of a waste of time we're deciding that this is a negligence standard so as a fact because the f c c can so bring those actions but again or understand that but i mean the authority of the r c c and privately begins are two different well they are and we pointed out our brief in opposition that this wasn't a good vehicle to take if the petitioners are really genuinely serious that this private right that's existed for half a century suddenly doesn't exist when they can't cite a single case that actually holds that and so as a matter of simple prudence i think it makes far more sense for the court to flag that this is an open question or some of these courts might think about again we don't even think it's open given this incredible perfect storm of congo of congressional and disha saying that this is privately forcible and then at least there be some percolation where litigants can see how did these arguments actually pa out and said this court would be the very first court to grapple with all of these arguments based on the borrowed text from from rule twenty five based on the history of this provision explaining is there really any basis for thinking that congress wanted this puzzling anomaly the litigants and central bank actually conceded the point the way the petitioners conceded the issue here and it wasn't just a concession here that were bound by fortini it was a point saying that fourteen years privately enforceable so the ninth circuit should hold that fourteen before is not is actually an affirmative point trying to gain an advantage on a different issue that was presented below is not before this court so i think given again this this perfect storm this is not the the camel's nose under the tent where we're trying to understand of all over sayings that don't read sand all the way that my friend is inviting the court to which is this mechanical after the fact magic words requirement that's a character of what sandoval actually held sand of all is saying look to congress's intent us usual statutory tool box and try to figure out what did congress mean and looking into a borrowed text that has settled meaning do you think i'm sorry but do you think that if congress is usual tools of congressional intent we're set forth today and would say well if we applied those usual tools we think congress intended there to be a private action but they didn't say that you think we might even in that situation say well we think there's a private right of action because congress wanted to leave it to us to make that decision i think that today this would be a far harder case for us only problem with this but to be absolutely clear we still would have a pretty good arguments because congress would still be modeling the new statute after an all statute i'm trying to remember exactly which which part of it i'm sorry well the fact that it was more specific in terms of rights creating obligation than the statute here in other words can and is not just an absolute rule while you look at the ontological context but there w congress knew that title six was privately enforceable therefore it would have understood the same language would have the same effect there's no reason to look at it any differently that's exactly what we have and that is the way sand of looked at canada acted right exactly and so c n n also i i appreciate my friends attempt to create some distinction but i just don't see how that how that actually works in the government's favor and i also like to point out that in terms of my friend's argument that if you are to recognize a private right of action it should be one only for scienter because that's what courts have been saying for fifty years i don't think that that is a faithful construction of the statutory text or the way that this court deals with implied rights that are recognize the adult i'm a touchstone is still congress intent and congress intent if you look at the text of this statute is incompatible with the santa requirement but perfectly consistent with the negligence requirement and i think that congress in one thousand nine hundred eighty eight looking at this language would have known at the time that there was a circuit split over whether a rule tempi five that the f c c with their limited resources as they made as they made the point in the piper amicus brief and i realize some decades and gone by but i don't think yes he sees the constraints on the resources to change much i think that someone looking knowing they only faced government enforcement is very unlikely to be as concerned about honoring the fallen q so if you're only sure about that i mean that seems i'm not because i don't try to predict seems like someone faced with the r c c and forcing a negligent standards going to be very concerned about their actions if in fact the f c c has the resources available to go after that they must think they do right because they see there is no private right of action while the deal you're on about i took their brief on that point to be to be fairly understated they stress geyser has sometimes indicated real concern with abuse of private suits and particularly with the opportunity for strike litigation what's the do you have an answer to that i  right of action doesn't exist the p s l array cuts off discovery untold motion dismissed has been resolved there heightened pleading standards and it says that there's a mandatory sanctions regime if you file the basis lawsuit there's absolutely no reason that any defendant faced with a frivolous lawsuit can't defend themselves jess's able easy can settle and if they do defend themselves they'll get attorney's fees and they should if the case is in fact baseless thank you counsel agree minutes mr jenner thank you mr chief justice fundamentally the threshold question this case is about the role of federal courts when it comes to creating implied private rights this court in sound of all charted a completely different course than the court had previously taken and there's absolutely no the reason for this court to abandon or backtracked in any way and of course i've heard no answer from my friend today as to how section fourteen he actually satisfies the test set forth in sam of all for creating implied private rights instead all we've heard is arguments for eroding sand of all based on context time travel congressional silence there's no reason for this court to cut back and send a halt and create new exceptions that are going to lead to grandfathering private rights recognized under the old regime if this court does adopt the premise that because congress adopted the regulatory language and will be ten the five and fourteen he then that has to lead you to the clues in that congress intended will ten be five cents a requirement so that doesn't help my friend either and as well finally with respect to the issue of waiver central baik resolves that issue as a matter of precedent we're in a much stronger position in central bacon that we indisputably briefed it at the sort stage we raised it in our panel hearing we didn't  the issue below we simply acknowledged circuit precedent and did not read the curious you may know the answer to that we're what do i look at but i'd curious how many proxy solicitations each year there are in the united states i'm curious to know how many tender offers there are in the united states so i can to you can tell me i can tell you through two thousand and thirteen to two thousand and fifteen there were seven hundred twenty five transactions of all the u s public companies hundred eighteen years tender offers five hundred seven thousands which suddenly you could ask the f c c to go go look at or whether you're talking about fifty and my goodness i guess they could do it now would you say they can do it on this one if we keep it to tender offers i don't know what happens if it expands