are right mr hartman will hear from you st good afternoon your honor as it may please the court i'm going to focus my time today on the predominance issues especially economic loss but also reliance but i'm of course happy to answer any questions split with the rd circuit ruling in you their individual eyes the issues of economic loss predominantly because and i'm quoting determining which class members were economically harmed required an individual analysis into each trade and its alternative the most striking thing about this case plaintiff somehow believes that conducting an individual analysis into each trade and its alternatives somehow distinguishes the even if that is the precise recent the rd circuit so a case like this cannot be a class of course claims the difference is that his expert mr botha can program a computer to do the individual eyes nice but hiding individual eyes litigation inside a computer doesn't make individual eyes litigation representative and class litigation has to be representative litigation by which a mean a trial of the name plaintiffs claim determines liability for the nameplate if and when the class as a whole and plaintiffs method simply doesn't treat evidence concerning economic loss but a used even to develop an algorithm but they want to apply to the whole class mr but it demands to see all the information covering all the orders of the whole class even to figure out how to program a computer to  how class actions are designed to and must work in a class action if the name plaintiff fails to prove liability as to him we know that absent class members couldn't prove liability either that's why it's fair to bind absent class members to remain plaintiffs defeat on the merits but not so here once verdicts algorithm has analyzed whether the name plaintiffs suffered economic loss we don't know whether other class members suffered economic loss has to treat justice that case required the court to consider the unique circumstances of each job position to determine whether there was unlawful discrimination here burdick is saying that he needs to consider the unique circumstances of each quarter to determine whether there was economic loss and hence securities problem now that basis alone is enough to reverse the classification order but there's more the nd point is that mr barry i can't even use the name plaintiff's orders to build the  ithm that will then individually analyze each order but i bet it is proposing to do comes down to this you start by looking at the order submitted to d t t t v ameritrade basically asked whether those orders either didn't execute well or receive something and back and forth we go and so you see the exceptions are the heart of them and it's critical to understand at this stage in the proceeding not who's right or wrong about the exceptions but the exceptions don't emerge from common proof they emerge only after examining the that only is the algorithm going to look at each order individually so that the outcome with respect to the name when it's orders doesn't determine the outcome with respect to anyone else but the algorithm that is going to spit out individual honest answers can't even be built from and leslie and the fact this is really important at this stage that preceded the fact that the experts are debating what the individual i circumstances of each class members were built for economic cost to determine how to program a computer doesn't change the fact of what they're debating which is that the individual circumstances of class members are worse and what they reveal about economic costs the fact that that individual is debate is unavoidable is yet another reason to talk to hide classification here to reverse the classification order i hasten to add we the detail in our brief a list of a variety of the disputes customer trading strategies unusual market conditions etc i'm not going to i'm going to dwell on that here unless you have questions but what i want to point and that makes this case precisely like the recent case this court in order to know in that case of course you had access to personal information that was either had a permissible purpose or not and what the plaintiffs think there is they took that unavoidably individual as the issue and they just smuggle it into the class definition and said well then we'll just define the class as people whose personal information was searched only for an impermissible purpose well that's exactly what happened here the court in that case said well that's a injury i think of theoretically possible that you could at the end of the day come out with one but the process to get there is necessarily individual eyes you can't afford it and that's what that's what makes that classification problem i'm not saying you can't build an algorithm i'm not saying decide who's right and who's wrong i'm not even saying that there's no class case that could ever have the power but what i am saying is that this class case under the current regulatory standards for what counts as best execution under the  regarding economic loss where you have to go running you have to see did it was it was able as a better price available at some other markets and or some other time under those circumstances there's no way to do it even if it theoretically can be done there additional time to come up with a suitable i would agree with us here but not possible in this case i'm not saying it's not possible for again this i think is the same question i'm not saying it's a possible to come up with enough of them but what i'm saying is what he's going to do  into all of the absent class members and workers he's going to get an individualized analysis he's doing it in order to program a computer doesn't make the rule that's being used to try to decide this case marketplace and make a decision well if you're if you're not saying that it's impossible that a class action precedes by algorithm what's an example of an algorithm situation that would be  well i think i think as i said i think under circumstances that are currently prevailing in sort of the regulatory situation here i don't know if you could do it under current off imagine if you are what you mean by circumstances that are currently prevailing regulatory situation but still that's why i thought if you gave the example in my house so yeah let me try so imagine a regulatory system that said best execute there's one thing you need to look at for best execution did you get did you get the you know the best price available at that particular moment and did you try to get the best price available at that particular moment but the only thing you had to look at it might be possible to look to the program to to to look at the mechanisms for trade and say ok well you've either got it or you didn't get it it had to really simplify things and you have to imagine situations where the movement of trades was what was was being judged against a very single uniform benchmark to get which which everyone agreed on and which was which was which you could use an individual order an individual set of orders as a baseline against which to judge the outcomes it's kind of hard to imagine in these kinds of situations again because our our marketplace is so diverse there are so many different market centers you have to really simplify things down dion which beyond that that's what i mean just just by present circumstances where you have a multi factor test for best execution you have a variety of different market centers you have a host of different brokers all of whom are competing for the best price at the same moment in time and how you're going to evaluate that this is very difficult under under these circumstances but there are other cases other kinds of cases i'm not sure best execution cases would be good examples where you could imagine gone back to the or do know case you predominance but then it said it's beyond that there's a it just before it goes into the failsafe discussion i believe it refers to ascertain ability and says you know we're not going to know who's in the class until you're done with the factual determination and i think it is just a kind of ascertain ability issue in any event a death and it's clear there's clear and thorough discussion of failsafe and that decision as well and that's that's what i'm referring to your honor i thought there was some vacate and there's no class here we have to reverse the class or became an order that's undisputed because it requires the individual inquiries into whether each person relied correct you know ok i understand thank you thank you mr st concern here was the you have to look at each tree individually to see whether it fails to meet the standard and then you have to incorporate certain exceptions to the general rule or duress whether those  know i didn't understand you to be arguing that every customer was a member of the class that seems to be what you're saying now i thought the algorithm was designed to sort out which customers what regular rigorous review is about we discuss all that in our brief and we said for classroom occasion purposes just push that aside and a question of whether there was an economic loss and make no mistake no matter what no matter how many times mr said well it substantive element of liability in a ten b five thing you cannot semantically wish it away you cannot pretend the breach of the duty is necessarily the presence of economic loss so hard it is  so that distinction and we're focused here on economic loss he cannot and he never did get to the point where he said i can do by common proof i can by common proof established economic laws in fact he said the opposite he class member suffered economic loss without fords with that just with force dad ford is not determining the outcome of those cases that determining other claims just wonder what your response to the argument that your efforts to limit and if you can prove the name plaintiffs plaintiffs claim then you can show me why the name plaintiff is representative of the class and you can do that you get the class you get to have a class action but what they did is they took all the name players information and then they said we can't use the name plaintive as a representative of the class with respect to economic loss and element of liability in this case and that's just critical and that's why we were right to limit discovery and that's why having so so because because that would be a discovery related only to duty to whether we breached our duty to seek best execution which as i said we said for classification purposes we're not disputing we'll get to the merits on that when we get to the merits but this was class discovery and so the algorithm that we use could only could only go could only be used to answer the question whether we didn't in fact best execution we think we did but that's a dispute for later that's not the  classification dispute that we teamed up which was economic loss you're not going to be able to show economic loss even if you assume a breach of the duty in some aggregate sense which is exactly how the f c c d o j in finra and regular regular rigorous review analyze it none of those regulators do it poetic proposes to be doing nobody reconstructs the market nobody goes trade by trade by trade or by order by order and says best execution here with economic loss not best execution here with economic with no economic loss etc said nobody does that and this isn't so good it is really doing something completely different and we're proper to live this because this was our classification argument and we were entitle to make it and not have to run all the way through massive merest discovery in the process i see a more time to judge con i do want to address the ascertain ability question about the this court's cases just quickly incent dusky at page ninety six and book does say that we the court has not outlined the ascertain ability requirement but it has said that it is elementary that in order to maintain a class action a class ought to be represented must be adequately defined