you've had three well three sets of lead plaintiffs are you here representing all of them or just reuse and are we saying this tree or whatever it is rhode island right as claim or otherwise has problems the whole case goes away so you really were excited to come here today well it's my third trip here so yes it was my first question is was recent tensional e not named as a pla or the consolidated complaint now he was intentionally put into the caption of the complaint and the question of what is named is really the issue and the term named in the class action world is a term of art if you have him in the caption under rule ten we submit that that's sufficient we don't have to say he's a name plaintiff and he lived here and he did such and such that's not necessary under rule ten  bad is sufficient now what's most important here is if we look there are two orders that intertwine in this case and both orders have to be looked at in are before the court there's an april third two thousand and fifteen order and then there is the ultimate dismissal order which was later in november of fifteen and the juxtaposition of those two orders is very telling let's look at the april third or in response to your honor's line inquiry if i may in april of the court below said there remained this is that e r to twelve year to twelve line nine plaintiffs did not appeal either aspect of the order there remain one named but non lead plaintiff to continue to prosecute the case individual investor mr aris who purchased eleven shares she goes on to say two lines later plaintiffs now move to substitute lead plaintiffs and to elevate mr reese as a substitute and then tellingly on line nineteen defendants are not prejudiced in a legal sense by a slight delay particularly when one of the proposed lead plaintiffs has always been a name plaintiff so from the point of view of the judge who has been sitting on this case for eight years she views mr reese as a name plaintiff and what this order does is deals with the issue of we want to bring in fifteenth two thousand and six and june thirtieth two thousand and six right correct you just said i think that mr rees held twelve shares of a d r as you mentioned eighty hours during that time i thought he didn't own any  d r purchaser ok that's very important just please from my perspective if he doesn't own eighty yards you've got a problem you've got a problem well that may very well be the case that i mean there's another issue as to whether you can raise the rights of the ordinary shareholders but let's assume under morrison co colleague could look that up for us because that's critical from my perspective a fair a fair enough your honor and that is not been criticised by my lurd learned colleague on the other side nor has it appeared in the bridges in your all learn it but april and then in november when she says based on three grounds of sensually one and two corollary grounds that he murdered his claim and first she reads she novel and we can debate whether she how whether she reached nobble accurately or inaccurately but i would says suggest it's moot given the supreme court's decision and all that basically says johnson is still the law and there's it's basically a strong presumption that claims are not merged unless there is let me ask you this as i understood it the only reason why mr aris remained in the caption is because the judge ordered that that be the name of the complaint that's why are we that's correct ordered and in no other way it was he wasn't mentioned in the list of lead plaintive he wasn't mentioned in the allegations of the complaint he was listed in the demands of the complaint he was just gone except in the title no he wasn't just gone he was on the field but he was sitting on the bench and that's acceptable what an apt metaphor it was on the bench as it say somewhere in the complaint where he was on the bench because i don't remember any reference  doesn't but the key is that when he's to extrapolate the metaphor when he suits up when he files his original complaint that's what triggers it that's good enough and once he gets on the field once he has brought his own complaint then the question is what do you need to throw off the field a lot of what it what if the team said you know you suited up but you got the wrong size uniform you're not big enough to get out here go in the locker room we're going to continue on the game with you that's not good enough they have to say you're fired or recess to say i quit the team can i ask you this if this is a little bit unusual in that the district courts consolidation order require the caption as you're pointing out to to be styled claude a resources john brown it cetera if instead the consolidation order had changed the caption to say you know in re whatever whatever securities fraud litigation and your the complaint your firm filed was otherwise exactly the same i gather you would basically not be here you would concede that you have no leg to stand on i don't agree with that for the following reason your honor because one has to take  the consolidation order as a whole and one of our problems is that eight years later the court below said what she thought the district judge that in california the trance for a judge appeared to be saying what his intent was but if we look at that when he talks about murder he talks only about merging the complaints he doesn't talk about merging mr rhys's claim so it is a there are i differ with you i'm looking at the sentence and i think it says quite clearly that these two separate actions which under hall might ordinarily be deemed to route to retain their separate existence are in this instance going to be merged into one action that's exactly what the order says  it seems to me that we have a situation here were your client mr rees essential he consented to something that might not ordinarily occur and a rule forty two on its own well he did he didn't consent and indeed we have cited a couple  cases that he did or did not he did not consent and indeed there are a couple of cases that we've cited where district courts did it what we would contend would be the right way where they interrogated counsel or the clients and said you know is this what you really to debate it it says to the extent the two complaints differ they will be merged and combined into one actually so going forward we do not have two separate actions with their own independent status we have one merged action that's what that says i disagree respectfully with your honor what that says is that there's going to be one complaint it does as an action well doesn't say one complaint obviously there's going to be a consolidated complaint what's key about that is it said these two complaints are going to be merged into one action going forward to the extent that the two complaints differ are they the end of scene of the day is the complaint that the complaints will be merged and combined into one action so that's not to debate quibble the grammar but it's also important to realize that in these cases pleadings are often consolidated and put together but that doesn't mean that the claims themselves are emerged and if you want to go and if you have to look at the actions of the parties in addition to what my colleague referred to knowing to the judge referred to the margin of the actions but mr rhys and his counsel were nowhere to be found for six and a half years nobody appeared for him he didn't appear he didn't say anything didn't sign anything didn't appear in depositions or anything during that time you had just gone that's not quite right your honor how is it wrong well number one we were his counsel and we were if the caption had been changed to enter a securities fraud litigation blah blah blah but that wouldn't change anything and what you keep coming back to all you keep coming back to is the fact that in the caption that the court ordered your client's name remained there w what do i think you got to just throw that out the window because you've said that if the caption had been ordered otherwise it would still be here that's it that's what else do you have besides the fact that your client's name kept being listed in the caption because the key issue is did the client voluntarily relinquish his claim and johnson and haul indicate that there is a presumption if you will against a merger so there has to be a clear indication i am giving up my claim now because you are sitting on the bench you are not saying i am quitting the team you are not saying i will never play indeed you want to play or near ready to play and what happened here was everybody else got injured so he was the only one left so they had to put him on the field how can you play football with one guy well they got the other team to volunteer i mean look i mean you you demonstrated how i think that after reading metaphors i think this was a mistake on your firm's part you obviously have come to acknowledge it a little bit late in the game you should have listed him in the body of the complaint as a name to but non league plane if you didn't do that it turned out you made a terrible decision on appeal in the second go round i don't know if as you personally but i think it was your firm you could basically you know conceded away matters that left your original clients out of court and then you looked  we only listed them as the plaintiffs in the case and i just don't have much sympathy actually for your position here because you could have easily avoided this by just listing mr reese as a party in the body of the complaint and just mention that he is nonetheless continuing on as a name plaintiff but obviously he's no longer you can't be the lead plaintiff because the court is doesn't need someone else to take that well we're not asking for sympathy all we're asking for is to is for you to find th never said i am voluntarily giving up my claim and that is sufficient now as to what's happened i mean if you quit mr cook do you have any authority for the proposition that just merely being in the caption is sufficient yes rule ten is sufficient because it doesn't require in the complaint that you have to list anyone but if i could return to his honour's question because if i can recap asked it's somewhat sort of what happened here ok what happened here is for example we tried to get rhode island in the p s all races get these institutions and we got them in there was interest series of intervening supreme court decisions that dealt with tolling that basically said we can't get any of those people land ok so then who's left well mr reese's left and mr reese has been sitting there ok he's been sitting there with his eleven shares am i going to say to you that someone with the levin shares is my dream lead plaintiff of course not but he's the only one left and he was and unless the other side i can show that he voluntarily and knowingly said i do not want my claim hall trumps that and it trumps any what i would say and we differ on this interpretation of the consolidation order because i do not think at best it's ambiguous i think it's not just order it's the complaint that your firm filed because well maybe you can educate me on this after i mean mr reese had other counsel you guys won the lead counsel battle you all were designated am i right you guys were designated lead lead counsel and write your clients really point of well no we brought the as i recall we brought the original complaint from mr reese so we were with reese from the beginning ok i thought he had some other lawyer well though he does  brought him to the party my point is but what about that let me ask you this because you are much more experience in this kind of thing than i am let's say that you had a single individual like mr reese who was represented so he was represented by a sole practitioner sure he files a complaint you come in with a big institutional investors you win the battle the judge says you're going to be lead counsel your clients are going to be plaintiffs and i want one consolidated complaint all of these actions are going to go forward under this one consolidated complaint i assume that if you are representing mr reese what you would insist upon is that that consolidated complaint include him as a name plaintiff albeit not a lead plaintiff right you would want him listed in the body of the complaint and if the other coun refuse you would make some noise about that with a g s and maybe no unfortunately it's not clear if sometimes there are name plaintiffs who the court or counsel believe has a designated role so if you have a stock case and there's some option off on the edge you have a name plaintiff to to deal with those options ok but even if that's not the case under hall and johnson even with a consolidated complaint unless there is an absolute voluntary merger the other people are still there with their individual cases and i would refer the court to justice ginsburg's footnote three and go boy where she talks about consolidation and merger for a period of top line but then it after the discovery is done for example then the merger becomes undone and that's the way these typical typically these cases are done and that's your honour's hypothetical you know what i think if you know i won the lead plaintiff fight and these other people were hanging out well there's an unwritten rule they're not going to get in my way but because we're a lead plaintiff but that doesn't mean that they are dismissed i mean remember what's going on here is you are essentially saying reese is dismissed and by the way to your honor's point just as a factual point they took his deposition they took his deposition and they took his deposition after the you know he was put up for a lead plaintiff i mean one of the ironies here was after he was but about but what about after the consolidation did they take it after consolidation well if you take the district court's view of the world the consolidation happened seven years ago so yes but that's almost by definition a let's point my colleague and i may have a bit more year over time let me just i'm sorry i want to confirm one thing with you your statement is i believe that mr ricci's own a d r s between the period of march fifteenth two thousand and six and june thirtieth two thousand and six is that your statement to the court that is my belief right now and we're going to double check what you don't know as of right now i don't know because i've assumed it because it hasn't been brought up in a seven year is do you agree if he didn't he's toast  speaking of course i understand that in all likelihood yes you're on ok any questions but my colleague just one last question is your position that reese can withdraw from this lawsuit by an amendment to the complaint where he's not named he has to do some some sort of affirmative action to be removed from the lawsuit there has to be evidence that he is voluntarily waiving his rights and i do and i think one can get  confused that with the paper flow going back and forth and i think that that's what hall has said and what hall has done is make us turn square corners on this merger issue and there's been a lot of practice that's growing up about complaints and how they look at who's on him and who's not on them and what the supreme court chief justice roberts told us starting with lord mansfield is that they remain individual actions as someone voluntarily ok merge me out i dismiss myself i'm glad you mentioned lord mansfield that's an appropriate thing for friday excellent thank you very much counsel for going to argument we'll hear from the  reese purchase i think all that's in the record is that he purchased twelve shares on may twelfth two thousand and six which timing wise would put him within the the narrow three month class period it's not in the record as far as i know whether those are b p ordinary shares or a d r s i think however that it's highly improbable that an individual investor in los angeles purchased b p ordinary shares on the london stock exchange and much more probable that what he purchased was a d r s on the new york stock exchange which is why we never made an issue of that from your perspective you're not quibbling about the nature of what he purchased you are willing to concede that plaintiff your honor i do a couple things one thing i wanted to point out from from may two thousand and eight to december of two thousand and fourteen every single pleading that the lab in december two thousand and four was appearing on behalf of mr rhys is inaccurate another thing the original reese complaint in two thousand and seven showing how long we've been going out this what was filed by an individual practitioner think for two independent reasons first the consolidation order e r three ninety seven plainly stated that the complaints were being merged in combined into a single was filed in the docket for mr rhys's own action and that amended complaint didn't identify him as a plaintiff anywhere in the body of the complaint anywhere in the allegations of the complain it simply listed him in the caption and it did so by virtue of the requirements of the april two thousand a consolidation order you can how do you respond to what we just heard was that for him to have been withdrawn as a plaintiff in this case you'd have to that an amended pleading supersedes the original completing and renders the original pleading nonexistent and that once amended it the original complaint serves no function at all that's the b first first of all the only authority that the plaintiff cite for the notion that merely listing someone in the caption is sufficient is rule ten a if you look at the citizens of the courts of appeals and really they reject the notion that simply being listed in the caption is enough to confer party status that the fifth circuit squarely held that in the federal savings and loan decision at eight forty nine second for fourteen sixty nine dots and footnote nine making express reference to rule ten day this court reached the same result in the us set a decision that we cited in our briefs even though of the right  miller chapter on federal practice that discusses rule ten as a that's a five day right miller section thirteen twenty one squarely states that the contents of the caption are not considered a part of the ple decades and the tenth circuit as recently as last friday has held that merely being listed in the caption does not make someone a party the supreme court held that in the united states  this court said that back in one nine hundred fifty nine in the hoffman case let me ask you this would you have changed any of your trial or your tactics strategy or take any additional depositions or discovery had you considered reached to be a party in th case you're on or what we would have done differently is if we thought that he was sort of a a freeform plaintiff out in the ether who could spring back into this actions at any moment back in two thousand and eight we would have pressed him either to voluntarily dismiss as claim or we would have moved to dismiss it i mean there there and i why in the world as i  understand first second why you say that let's say that he had in fact been named as a name plaintiff but normally plaintiff in that amended consolidated complaint why would you be in a position to get rid of his claim your honor if he if that was judge raises questions i misunderstood it and i misspoke if he if he were named in the body of the complaint in the very first paragraph of the complaint and part of the complaint that was parties if he was named there as a plaintiff we would not have done actually named in the allegations of the complaint i mean you will see complaints where under the party sections there are the lead plaintiffs and there are the name other name plaintiffs and you actually have cases the countrywide class representative there there is no authority the that side anywhere for the notion that merely being listed in the caption confers party status well ok can i ask you this of course let's say that you are three complaint you need to file a separate complaint if you're not listed at the very least you need to express some objection to the court either for the merger of the actions or for a mission from the consolidated complaint the one thing that you should not be able to do is sit completely silent for six and a half years not participate in the litigation anyway have no counsel representing you and then attempt to spring back into it six and a half years later in december two thousand and fourteen as if nothing had happened you can imagine if you were mr reese mr reese was represented by counsel and you get the men to complaint that has been filed in your action in your in number and you see yourself and your listed only in the caption and mention nowhere in the body of the complaint i don't think there is any lawyer out there who would say just because you're done a fight in the caption that's enough to keep you alive bringing the action he would have to be listed together with the institute investor group and then in the section of the complaint that identifies the parties there's an express section that benefits the parties after the lead plaintiff he would need to be included and i think he would have to be represented by counsel so counsel appearing only on behalf of the lead plaintiffs wouldn't do it here one of the funny things if you look at the caption if you look at the caption what it would need to sing a plaintiff in this case is mr aris right right and i believe if you look at the prior decisions of this court the hoffman decision which said that the caption of an action is only a handle to a den of fi it and ordinarily the determination of whether not a defendant is properly in the case hinges upon the allegations of the body of the complaint not upon inclusion of the caption this court made that same point at the end of two thousand and seventeen the liberty mutual and fire insurance case which was the side after briefs were dismissed submitted its seventy seven fed third ten eighty one and that case dealt with whether plaintiffs who were mentioned in the caption but not in the body of the complaint had status of the parties and as i said the tenth circuit just on friday a two thousand and eighteen west law two seventy five two five seven zero reached the same result saying relic back from when a case was first filed robert malone has been in the caption as a defendant from the very beginning of the case because he was named as a defendant in reese's original action ceased to be a defendant in the case with the filing of the consolidated complaint in may two thousand and eight yet he's still been listed in the caption to this very day indeed if you look at the caption for this appeal two  the five defendant appellee is a den of fide mr malone and mr marshall haven't been parties to this case for four years but they continue forward in the  caption just because that was the caption at the origin of the case and to the point that was made earlier this morning i mean i would attach even less weight to the fact that mr aris was listed in the caption because that was not a conscious decision of lead plaintiffs counsel it was the provision of the consolidation or the consolidation order said this case shall have the caption of claude a recent versus robert malone and john brown and we we use that caption really not thinking that that had any substantive significance up until december of two thousand and fourteen and you know i recognize that you know for from the perspective of this court and i'm sure from the perspective of mr dobbs that this might seem like a a harsh result and it might seem unfortunate that a case that is actually now in its third visit up to this court ends in this way but is a result of the supreme court's decision and this point can be changed i believe only by congress but the second thing that we sort of lose sight of is that when the supreme court handed down its morrison decision in two thousand and ten which held that only purchasers on domestic exchange can bring claims under the securities act that ruling in two thousand and ten eliminated four of the five leave plaintiffs here all  were foreign pension funds that purchased their shares abroad mr dobbs obviously knew about that case he actually argued the morrison case in the supreme court at that point knowing that you had lost eighty percent of your plaintiffs in two thousand and ten which would have been before the expiration of the statute of repose i mean it was incumbent upon lee plaintiffs counsel to really scrutinize what plaintiff was left and whether they're in a position to protect the absent class here the one plaintiff that was left was the pipe fitters union because that's the only domestic lead plaintiff the bought shares on the new york stock exchange and it bought it shares early in the put class period before really the statements that were the focus of the action at that point in two thousand and ten it would have been easy to substitute in additional plaintiffs for the protection of the class that wasn't done in two thousand and ten and then the situation was exacerbated by failing to appeal the dismissal of the claims based on the statements that gave pipefitters i think what you spent the last minute or so talking about wasn't really the problem the problem was the narrowing of the class period on the second have only one and you look at when that one plaintiff purchase your shares i think it's incumbent upon you just asked a question whether you need more and you know back in two thousand and ten after morse and there was no no prohibition at all that an more but you're right the decision when we were up here last not to appeal the dismissal of the claims based on the earlier statements that preceded pipefitters purchases i mean that was to use mr does phrase that was the quite right that this is very serious given the underlying facts and given the fact that there have been a number of intermediate decisions which have cut this class and if we would have come in with a whole ragtag bunch of people we would have been criticized we tried to come in with rhode island which is a very substantial pension fund they didn't make an iron fitters and make it for a variety of reasons mainly intervening legal decisions they didn't come in and the idea that after  morrison we're supposed to come in with a cadre of another lead plaintiffs isn't it the key i would say i would suggest to you besides hall which is a tough tough ruling and it cuts our way not their way is in the district court think who is close is this and i'm april third she said three times reese was a name plaintiff and if it was so obvious and this was such a sham and this is just all this stuff about how  she would have cut through it because god knows she's come through everything else which is why we've been here three times we thank you to appreciate that additional and i and i will get back to your honor on the point you raise he's articulate to the point so i guess we don't need very good i think but i i understand from somebody today that there is a a brewery here that does free beer so maybe the two of you can go have something to settle this case in some way and history to you mr pepper amended i have very good professional