also to reverse the district court on its refusal to open the final judgment in the case order to allow us to amend our complaint and when i say our complaint i'm referring to the complaint that was filed  was artificial inflation correct well i'm sorry i'm sorry and that's what i meant to say it's been kind of a long morning it doesn't seem to exclusively say imprudent investment what you just said correct i mean it it's fair to say isn't it that you do have an artificial inflation therion here in partly yes your honor and one of the reasons one of the reasons that we did that was because this case that was brought by mr magic and mr limbaugh so arose from there was some prior litigation called the taylor case which eventually made its way here to the sixth circuit and in the in the taylor case it was also a case just like this one that was brought on behalf of the participants in that same plan alleging the same losses to the plan participants into the plan itself  that the plaintiffs in that taylor case moved for class certification and in response the defendants moved on twenty one ground saying not so fast no injury there's no injury here because you mr  damages arguing in essence that there had been other courts around the country that had accepted an alternative investment theory of damages basically saying that there could still be damages to the plaintif even if they sold even if she sold if though if the point of retirement investment had been invested in instead of the common stock invested in some alternative investment in the in that was available in the plan this court rejected that argument in taylor and found that the plaintiff lacked standing and there was a discussion by this court of the dura case by the supreme court an application of an app an application of d am with respect to whether or not the point of him taylor had standing and i mean our court said our court rejected the idea that the taylor complaint set forth an alternative investment theory and just said no we think it's an artificial inflation theory and then the court went on to apply to dura is that fair i think i think what this court also said is that i mean that i mean on that common ground here i think that's common ground ok but  i think in context what the court was saying there was for standing purposes right you know you look at did you look at whether this point of having lost this court in tailor considered some of the other decisions for example of a second circuit decision in donovan and said we're not going to allow the plaintiffs here to establish standing because on this alternative investment theory i don't that that you're complying basically duplicate and if the court did bad married in that that case what's different here about your case so so our case was filed after the district court dismissed on twenty one grounds but because we had the favorable decision from the district court on twenty six rounds we did file a complaint that practically mirrored the earlier taylor complaint however what we did was we made clear in our in our complaint that these plaintiffs didn't need the alternative investment theory of damages and instead just had typical  stock drop losses losses and wheat and they sold when it was not still inflated they didn't sell or one for one did one one my client mr magic continued to hold throughout the entire class period and we put in a paragraph alleging that you know for example mr medics the value of his holdings in the stock were x and by the time that he filed his complaint they were much less than that we give specifics laws that this court discussed in taylor was is that in the arista type of claims that we have here you don't have to sell in order or you don't have to buy or sell you it's enough to hold to have a claim so for us here we'll ledge that mr mr medich had held the stock held the stock in the plan throughout that entire period and just the fact that he was holding during that time period and then the stock price dropped after that you start please finish that would be enough for us to see that claim under risk as opposed to a securities type of analysis where you need either a purchase or a sale but to follow up that that same question  do you specifically allege that the stock not only went down in value but went down below the price that your client paid and if so what paragraph of the complaint is that because it's like a paragraph complaint right correct we if you need to find a paragraph number you can give that to us in the bottle but no but i want to be really precise about that not just it went down it went down below the price that your client paid ok because the paragraph i saw or you had money you or your shares grew but the price went down but it didn't say one down below which paid for ok and i think that's a issue we have to think about it is an issue to think about and i will one rebuttal attempt to answer that question but the other here is that unlike the securities laws where there has to be a purchase here under you don't actually have to have a purchase it's enough to have a holder claim and so for example when the when whenever your choir that stock if the stock later comes up when courts look to measure damages they look at the difference between what that stock had been worth not necessarily when you paid for it or acquired it by someone and way our case it went up and then it drops and she's sold yes but but it never went below or paid for but i think the issue in taylor was that in taylor the plaintiff actually sold her stock during that same period of time during which she claimed that this stock was or officially inflated if the stock hadn't well but you say you you make an alternative investment theory no we said we say we don't have to make an alternative investment theory and one of the things we say is that the district court here with respect confuse the issue of the old alternative investment theory there is an alternative investment theory of damages and then there's a fiduciary would make an alternative decision about offering stock and i think what happened here was that this record can try to confuse those two issues looked at taylor and saw this court court rejection of the alternative investment theory of damages but  act should have acted differently so so for us we say that there were a number of things here going on but one of the things we say is that file do not offer in griffin provided the proper pleading standards set by this court for pleading in a receipt claim and that bill are you saying you know or you don't know we don't we don't of damages we don't we don't we don't plead an alternative investment theory of damages meaning we're not we're not alleging that one element of the damages here is that had they we alternate investment theory because when we filed it that was already in the taylor complaint and we pretty much just added to it our allegations about why our particular pla well ok but i'm driving at is i mean do you argue before us that you argue that you have played artificial inflation in addition to the alternative investment theories of liability yes both theories yes li taylor you know suggests that there might be a freight train coming but not really and so this is this is what i want to i hope to explain was not really because for us what this wasn't a calculated decision but for us we looked at taylor and we said at your inexperience class action practitioner and i'm sure you know that the distinction between no injury for standing purposes and no injury for twelve six purposes is oftentimes you know  so i mean why should you have figured out hey maybe we need to amend earlier rather than after the court rules because because for us we looked at the prior twelve b six decision we looked at the three decisions from f griffin and didn't offer and we looked at the problem and tailor which was standing and we said our plaintiffs don't have that problem and that's that's why we didn't ok i mean you briefed it extensively so don't worry that you know we're not cognizant that they don't have an alternative investment theory of causation but in fact in their briefs that is what they argued they relied on this court's decision in field versus state street where the court where this court found a causal link was adequately alleged in the act very different case not involving any element of artificial inflation at all simply by alleging they had a reasonable fiduciary would have made a different investment decision on behalf of the pla that's the same type of allegation that plaintiffs have up until today i understood argued that satisfy their obligation to allege causation that's an alternative theory of turtle turned into the investment theory of causation it's designed to create a causal link between an alleged breach and an alternative investment measure of damages desk council in the court i think agreed to during his opening comments let me ask you why doesn't  loss it was how it was whether or not the mention presumption which is a abuse of discretion standard that's given to aesop to do sherry's should apply at the pleading stage in  contrast in the taylor case where as we've established the same exact complaint was filed as in this case the whole issue boiled down to whether whether the complaint should be construed as being based on artificial inflation whether the complaint should be construed as alleging that key corp artificially inflated its stack because that construction would dictate how to measure damages in the case which in turn would help the court determine whether miss taylor had standing or not what the court found was that the alternative investment measure of damages which mr taylor was asking the court to apply and which these plaintiffs have also asked both the district court and this court to apply was inappropriate why because the if performance of an alternative investment there's no causal relationship to the breach that's alleged here the well i mean you're assuming that they've only pled a in all turned in artificial inflation theory of liability is that fair that's a that's a premise of your argument it is your honor but i would go further and say that is the finding the construction of the complaint that this court already made in tailor einar stand your argument there but if we just set that aside for a moment it does seem that they have allegations in their complaint i mean they've got a lot of allegations you know that could be construed as an alternative investment theory of live building i mean i want to give you a chance to tell me why that's not true for example i apologize i don't have paragraph numbers here but they say they say the key cork's stock was an extraordinary risk far above the normal acceptable risk on a different paragraph they say nonetheless during the class period defendants continued to invest the plans assets in key corp stock and to direct and approve the ongoing automatic investment defendants breached their for the imprudently invested isn't that an alternative investment theory of liability it's an alternative investment attempt to to allege imprudence that based at its core on an allegation that key corp artificially inflated stock in wells but i mean i understand you know maybe reading context and i understand you know taylor had this at its core language but again if we just set that aside and look at these allegations i mean they just say it's risky right but yes your honor they have the the words that the the allegations that you quoted but this court already went to the trouble of construing this ninety five page complaint and the very issue that it was trying to decide when  made that construction was the same one that you're raising now which is is this merely an artificial inflation case or is this also an alternative investment case is it your position that if we ruled against you that we would be ruled contrary to what the paper yes your honor because the same argument is before you again today they are they are asking essentially for a second bite at the apple from this court the tailor court held in characterizing in constru corp stock an imprudent investment throughout the class period so while this court recognized that there was an imprudent allegation in the complaint it was very clear that they had imprudence was allegedly based on the artificial inflation of the stock and if you go through this very lengthy complaint you'll see a paragraph after paragraph in heading after heading that they've inserted into their complaint cons a constant theme failed to disclose the facts that they thought rendered the stock imprudent so this court had to decide in taylor whether an alternative investment measure of damages was appropriate because if it was this taylor would have had standing their whole argument was she has standing because another investment would have done better than key corp stock so without regard to whether or not she lost money on an out of pocket basis she did less well than she would have done had the fiduciary has moved the stock to another investment so if this court had found that there was a viable alternative investment allegation in theory properly stated in the same exact complaint this court would have decided that she had to the end they had to determine that not necessarily i mean mr makes a distinction between alternative  or artificial in place inflation theory of liability in the same theory of damages and the issue in taylor was whether they suffered an injury  d you guys made or no injury are you right and and so the court didn't have to address whether there was an alternative injury theory or alternative investment theory of liability because even if there was such an allegation absent any injury it wouldn't matter right but i think i think you've assumed a way what i would would say ok i mean i want you to tell me where i'm making i think sanction i think the assumption that i would disagree with your honor is that if there was a viable alternative investment theory of liability stated in the complaint then she would have had  saying did our court specifically say anything or intimate anything that that makes you think that backs up what you did i think i think the court did it in a couple of different places in i believe i'm looking at the discussing the very argument that was being presented there which i think is very similar to the one that's been presented here and i quote take your disputes that out of pocket loss is an appropriate measure of or injury suggesting that we use an alternative investment theory specifically tailored to claims that she would have made more money on her investments if or holdings have been transferred away from key corp stock and placed in the example that was used with the s and p five hundred we hold that such a measure of damages is not appropriate in this case and then in explaining why that was their conclusion this court said in the in the very next paragraph damages based upon entirely different investment vehicles such as the s and p five hundred are not fairly traceable to the defendants breach so it was not based purely on the fact of miss taylor was someone who sold at a profit court was referring to the alleged breach that was set forth in the complaint in other words that breach was a misrepresentation about value rather than a bad investment decision correct your honor i think  that's a agree with that statement and if you look for example if you're looking for references in the complaint that i think this court relied on in reaching their conclusion paragraph sixty three of the magic of mental complaint states had defendants disclosed to participants key corp's true financial in operating condition participants would not have chosen key corp common stock as an investment option to the extent that they did so what they are alleging and this court has already held it has already found what they are alleging is that there was a misrepresentation that there was a concealment and that that caused them to buy stock either at a well at a price that they otherwise when i bought it in an amount that they otherwise would not have bought it what taylor holds is the proper measure of damages for that is out of pocket that durai applies and specifically the alternative investment theory has no application here so we are simply retreading ground that this court has already covered and when that freight train carrying plaintiffs were on notice that this court had construed their complaint in that way plaintiffs were clearly aware that if they intended to proceed on some theory other than all artificial inflation and if they intended to seek alternative investment damages they needed to amend their complaint ok so let's say you're right about that i'm not saying you are but let's say taylor decides what theory of liability has been applied and let's say they're confined to an artificial inflation theory  this case is i mean there have been some new allegations i mean this is technically a different case than taylor these are different plaintiffs they added some allegations and but so the causation standard for the artificial inflation is you have to show that there's a if there was you know the they allege there is a misrepresentation that inflates there has to be a revelation about the truth that de and and the deflation has to go below what you attained for is that correct and ok and so under that theory they they allege that the market price a key corp's com stock was artificially inflated do they can do that concealment subsequent announcements were devastating to keep corp share price and ultimately to the value of these folks for one case why doesn't that meet the causation test of slash taylor because they don't allege the stock price dropped in response to a disclosure of a prior concealment they don't even contend that they do and when they try to try belatedly to amend their complaint after final judgement they did not try to buttress those allegations but rather sought to eliminate the artificial inflation theory from their case all together but if you if you look so there's no contention here that they meet these dura allegations and they don't and i know it's hard to go through a ninety five page complaint as we stand here now but i can point you has by way of example to two specific disclosures that they reference in their complaint one being on december to a disclosure on july twenty second two thousand and eight relating to the leverage lisa issues and that and they and they talk about the market being reacting to that while the market reacted to that disclosure by going up again so they did not attempt in their complaint to show a loss connected to any artificial inflation of the can of the stock they instead sought to establish an alternative investment theory of causation and damages that they could have done better in some other investment vehicle and that puts them squarely back in the holding of taylor who already which already decided that this very same complaint that they made it a strategic decision to copy word for word and judge catholic it wasn't that they added any allegations in this complaint about defendant's conduct the only difference is in they themselves say those were about their particular investment histories and they have and it is the it is in effect the same parties here because we have the same alleged class the same defendants and word for word the same theory of breach were different were ethnically not law the case right i mean it's a different case and you know it's they haven't gotten certification yet he'd be the first to say we can't you know treat it as if they have i mean i think for all functional purposes that question almost doesn't matter because just gon i mean you really have to go to precedent right and what closer precedent could you have and when they made a deliberate choice to copy the case and when they themselves say a twenty one page twenty one of their brief their opening brief that they have simply stepped into and tailor shoes for the sole purpose of asserting the claims that she already made and that is all that they've done here so whether we call this law the case or we call it stary decisis it is binding here and if they again if they wanted to assert a different theory they had every opportunity to do that and instead of instead of taking that opportunity they took a roll the dice they wanted to wait and see if they could get through the gate on their artificial inflation theory a second time and this court has been very clear in the glazer case in the recent case judge seiler that that you are thirteen see you know ward that waiting and seeing is not a viable option if a litigant wants to or at least is not a viable way of getting a second bite of the apple they if they wait for final judgment they've waited too long this was not a dress rehearsal we had down below it was a it was a lawsuit and just as we wouldn't be allowed if we were to have lost a final judgment to say can we try again with a different theory of defense it's not fair or appropriate it's not consistent with the notions of finality to allow the plaintiffs to come forward with a new theory once their first theory fails they were on notice this court had put the handwriting on the wall that handwriting was put forth in a published decision of this court in taylor and they we knew that they had an artificial inflation case and that's all they hear out and to the extent they were alleging imprudence the way they did it according to this court's careful construction of this complaint was they made it based on their theory of artificial inflation ok thank you for your argument  and what we don't allege but one of the things that's important here is that there is an artificial inflation claim in the case there's an unduly risky claim that we make and that alone forget about artificial inflation even if the defendant said nothing grapple with is the taylor case and what mr warren just said is that you know in taylor fair reading in his view is that to the extent you purported to allege  alternative investment theory it was that it were imprudent investment it was that it was imprudent because of the inflated value and so how how do you get out from under taylor saying what it said about the nature of the liability theory in your complaint because because taylor is taylor on the one hand is a standing decision and it addressed the plaintiff's lack of standing assume that distinction isn't persuasive ok so then the other thing is that in ta r the plaintiff only could go on first for purposes of pursuing these claims could only go on the alternative investment theory of damages which we don't need here and we don't know if it's in our complaint we don't need it and we've said that in our brief we don't need it we don't we don't have to show it and your honor you would ask me before about some of the allegations that we make in our complaint that we don't allege in our complaint what purchase price or acquisition price mr  when he first acquired the stock what we do allege in a couple different places for example in the record three twenty five it's paragraph nineteen of our complaint as an example we say on december twenty first two thousand and seven hundred shares of key corp stock valued at sixty five thousand i remember that ok and we make similar allegations as well and we also then have a causation paragraph where we allege that the plan and the class suffered losses as a result of offering imprudent stock what do you say i mean do you specify any where loss is relative to the price at which your client obtained the stock or is it losses relative some peak it might have had at some point we'll ledge for example in the paragraph that i just mentioned we use that date december thirty first two thousand and six because it's the end of the year right before the class period  so we use that as a measure we don't go through each individual acquisition by the plaintiff or by the class members with file that in our view file didn't offer and griffin provide the pleading standard this was not a roll of the dice by experience class counsel this will and this is not a case like c n n although defendants didn't include that decision in their briefing here i'm aware of it and that was a four different situation in this that  come down before we put in our opposition papers and we saw what the pleading require it's where they are we felt we met them in there is absolutely no reason for us to the to amend so in fairness to us when we think stay and we did everything we think we could have done in order to move this case along that we'd hate for that be held against the class here who suffered millions of dollars in losses ok well we thank you both for your arguments really was a very well argued case by both of you and i can assure you