and citibank entered into thousands of separate contracts over the telephone each contract for either the purchase or the sale of foreign exchange now for ease of use i'm just going to refer any as to purchases and not talk about sales but it works both ways each contract for the purchase of foreign exchange was at a very particular price it was the price that was agreed to the actual number over the telephone or because it's a limit order which is not a disputed term here or the best any better price of valuable in the market at the time of execution i'm having trouble understanding  what these transactions are really supposed to be according to the s d a agreement the way you describe these transactions and maybe this just means it's a disputed issue of fact i don't  know the way you describe the transactions it sounds like someone's talking to his or her broker right the equal of merrill lynch and you say buy me one hundred shares of google at the market or buy it if it goes below or above a certain price or sell it because of certain price and that's their job is to execute the order but the underlying agreement between the parties stresses that the counter parties are acting as principles that this is buying from citibank we're selling to citibank and it's a little hard for me to understand how a transaction like that operates as if there's a contract that says we'll buy at the market price and then it's agreed you know the there's an objective determinant of what the prices then they're supposed to sell at that price or there's a there i there to sort of a two part response and actually your question sort of thinking about that reminded me almost in an analogous context and in any trust we have like a two sided market because in effect citibank is it's two sided here on one hand the great days they have statements that citibank gives them every month and you know that's your brokerage statement that has all of these transactions listed so in that sense yes but the way that is to agreements operate here is that it's a master agreement and there are as we point out in the brief an important difference with respect to damages between the two plaintiffs here but it's a master agreement sort of setting out the general framework how were things are going to happen however its individual call creates an individual country exactly but what is your contention what is it what are you contending that the contract is when mr merchant who is acting as an independent principal and i say i'd like to buy this but only if you can get it at a certain price the issue is i want to pay this price and the other side says either yes or no well but that's because the the definition and it's not a disputed definition here of a limit order is you get it for me at either you know the price that we specify or if you can get it at a better price when you execute that's the price oh that's never just yes thing though that the other party is operating as your agent as well but that's well and in effect they have to go and buy the contract is you have to go and do something as my counterparty you have to go buy it at this price and sell it to me so in that sense you have to go and buy it at a certain price and sell it to me at the same price yes and the difference here is for example and it's in the brief s you know pled guilty to this exact same conduct what what what was missing in this contract is that we're going to charge a commission or a spread citibank which is also sophisticated party here did it's a limit order yes but i know it's the definition of a limit order so i thought i may be mistaken i thought the idea of a limit order is that when the price reaches x we want you to do the transaction price or if at the time of execution there's a better price you take that price you don't wait until the price keeps going up and up and up so that citibank can executed a different price and take the difference they could have built that into each and every contract they never did that's the whole point of a limit order in this context and as i said it's never been disputed here at all from day one what a limit order is that's never been an issue in this case  so you know the and this really gets a sense the essential there the sort of two things that this decision fundamentally turned on in the larger issues here one is isn't citibank entitle to take a profit well first of all they're making plenty of profit on the great days and you know they're making hundreds of thousands of dollars because in a gret days are doing almost all the transactions on margin and it's not insubstantial margin the notional values are high they're making hundreds of thousands of dollars profit again undisputed just because they're making a profit doesn't mean you can't make more profit that's correct but they need to but when you have a contract the contract does not allow for them to build in a commission or build in a spread or wait that is an expressed violation of the terms of the contract the allegation of the complaint is that as as you're presenting it to us is that one or both of the new great days when they made these oral trans agreements with citibank made clear enough or at least that's the allegation and that can be tested and discovery in cross examination and trial made clear enough that they understood the term to be that citibank was forced to go into the market and executed transaction on their behalf and come back with a particular kind of price and they said yes and it's that's not only that but it's not even disputed and then further what we know is that citibank once the contract is in place they went through all the shenanigans between their traders and deliberately grannies about what happened so citibank also not only from the conduct that they've admitted to but it's never been an issue here in this case the other issue that the district court in correct well when you i mean when you say it's not liability on the contract claim and that's also part of this appeal damages are a separate issue because it's not disputed that the each and every individual trade contract was not executed  question the question is was there an oral conversation in which the terms of the transaction were sufficiently specific to overcome whatever is in the is the agreement that suggests that these are parties operating at arm's length and that the deal is there not being a broker who is supposed to go out and execute orders they're a counter party who is buying and selling and if  you know i'm not saying that that can't be overcome i'm just saying the question is are the telephone conversations are they agreeing and they they don't dispute that the telephone conversations make an agreement that says you will go and get for something at a certain dollar price there's nothing in this record whatsoever that says otherwise so the answer is yes but the is degree misremember it doesn't matter if you're principal or agent here the agreement between the may please the court your honors marshall fishman from goodwin proctor for citibank and therefore fundamental points that compel a ferment of the district court's decision dismissing the amended complaint here first pursuant to the iss the parties transacted approximately fifteen billion dollars notional per year in fountains of f x trades over a ten year period including during the financial crisis yet there are no trading losses alleged disclose the complex risks of loss and volatility in f x trading yet there is not a single allegation of a losing trade or of an out of pocket loss thus there is nothing that citi did or did not do what about the breach of contract yes why does there need to be a loss if there was a contract that says an agreement oral agreement on the telephone that is alleged in this complaint is just an allegation as far as i'm concerned at this point the allegation is we had an agreement on the telephone that in effect said you will act like a broker you will go out and execute this kind of transaction for us in this way and if that didn't happen and then instead citibank comes back with some other kind of thing and represents that they did do what they were gated to do but they hadn't and therefore they got a worse price than what the contract should  been why that's a sufficient for a breach of contract claim isn't it no it's not your honor cure the fish the pellets fail to cite any provision of the of is do is that these supposedly breached in addition they don't have to but there that's not their argument their argument isn't you breach the is that the is the itself says this is a generalized framework and now there are going to be transactions of a totally unspecified kind as far as i can see from reading it it could be any kind of transaction and they're saying the course of dealing and this specific oral communications were as i read it we treated you like a broker and you agreed to be treated that way and you took the limit orders you took at the market orders you didn't we didn't sort of agree on a price that you're going to sell at now that may be wrong that may be disputable but i'm trying to understand why the is the agreement doesn't allow for those kinds of oral contracts to be made first off your  honor the agreement does contemplate that words would be taken by the phone subject to the framework of the is a you can't take in is your agreement with the parties or principals trading for their own account relying upon their own analysis and turn that into a broker dealer best execution situation that's number one number two the is to specifically refer to that in addition to the is the confirmations any will form the agreement here there's no allegation complaint that any provision of any confirmation was breached and it dition the specific allegations of the complaint taking them as true as the court must and the appendix page five forty eight all they say paragraph thirty five of the amended complaint and it goes on for twenty allegations about the individual trades and that they placed an order by phone with an unknown citibank employee and if it reached seventy five point ninety five or better then city would fill it that's their allegation there's no allegation of a contract of a conversation with you is a misrepresentation or representation they're trying to turn this into a broker dealer situation which is subject to the framework of the estas and of the confirmation it is not in addition in each of these allegations with respect to the specific trades they fill the order the judge suite found below they sell the order at the exact price requested so paragraph thirty five they requested seventy five point ninety five that's where they filled paragraph thirty six they requested eighty seven thirty seven they filled it eighty three sir thirty if it reaches seventy five ninety five first you can fill it there that's a limit order but what if you don't the argument the league ation is that you didn't fill it immediately when it reached seventy five ninety five you filled it at a later date and then sold it to them at seventy five and that's not exactly the allegation your honor with all due respect in paragraph thirty five they just say reached seventy five ninety five were better later that day they filled in a seventy five ninety five but the best available price was point fifty six and they're saying that citi took a markup from that what is the you know they're they're alleging i guess wrongful markup is the idea that citi boarded at seventy five fifty six that's the implication of that anyway it's not clear but that's an implication but in any event it is implausible on the face of this amended complaint to suggest that citi engaged in thousands upon thousands of x f x trades as a principle under the is done for over eight years and did so free of charge that is just completely contrary to the clear terms of what this relationship was no we're in their briefs do they address the principle or principle trading relationship no where they don't dispute it and the law is clear in the cases that we've cited the money transfer case that a counter party is entitle to profit for its own account and as a title to mark up they're trying to completely turn this contract into something that it was not it's implausible on its face but in addition what the plaintiffs here did was the appellants did they dismissed out voluntarily because judge sweet only granted the motion to dismiss the contract claim in part he let them proceed with any transactions that were failed to execute or executed only in part by virtue of their allegedly taken a markup and when we served discovery request on those claims they defaulted and then they even voluntarily discontinued with prejudice every contract claim based on anything that potentially cause an element of damages they just dismissed it outright that it was a final order subject to judgment that could be yes but first we serve discovery requests seeking the actual trades that they were claiming form the breach of contract they feel to just comply with the discovery request and it was only after that that they voluntarily does discontinued with prejudice as to their fraud claim each again each of these allegations like in paragraph thirty five thirty six at appendix  no allegation of causation and there's no allegation of any ad of pocket lost on a single transaction all they claim is at pages one to four of their brief that quote unquote city was prohibited from from profiting could you imagine that as a matter of practicality that a bank is conducting thousands upon thousands of transactions as a principal under for almost a decade during the financial crisis and they're saying the allegation is that no you are not entitled to profit you are prohibited from profiting that is contrary to the terms of the us judge swe maintain got it right citibank was not and was not prohibited from profiting just how much i already profiting hundreds of thousands of dollars based on the relationship but i do want to draw your attention to page six eighty five of the record at the bottom one  work talks about each of the individual transactions because i don't think the is just being interpreted correctly by my adversary it says that the parties agree that with respect to each transaction a legally binding agreement shall exist from the moment that the parties here to agree on the essential terms of such transaction and that's exactly what your honor was getting at in your conversation with me exactly but what you put the best i could get not out of the complaint even but out of the summary judgment definite instructions they were limit orders here's what a limit order is then there is a statement that says if the better price is available to citibank at the time it executes a limit order then citibank is required to give that better price to the client now there is no statement in there there's nothing that says that's what we agreed to on the telephone you're saying there's a limit orders these is really getting into what is the definition of a limit order and that what was that obligation mannion into it was it entered into each time there was a telephone comes out and that's exactly what the is to set that they would be contemplated didn't exclusively limit it but the is this contemplated specifically each tolling the trading desk or the water i mean this is a very thin kind of allegation for people who are engaging in these thousands of transactions over a many year period it's not even an allegation that we did  gave these very specific instructions each time for awhile and then it was established that this had become a kind of brokerage agreement as a matter of course of dealing or anything like that it's just we placed limit orders  seems to me that to change the deal from everybody's operating on their own account to you are not operating on your own account you are to take instructions from us and execute trades a particular way without making any profit on those trades and without acting as a principal on your own account there would have to be a pretty explicit conversation to that effect not not in the context of every they're both sophisticated parties they both understand what limit orders are this is the way they trade in the that this is how it was happening and in fact if this conduct was in fact ok and permissible then why is this conduct referenced as other relevant conduct in the plea agreement why in the same investigation is u b s actually pleading guilty to this exact same specific common conduct because you know the road response on the your adversary's argument that you had to show out of pocket loss well very well with respect to  is that he doesn't have limitation on damages so that's part one but generally i'm where the larger damages exist here if if if the new gretta is purchased at ten and citibank executes at  eleven i'm sorry and executes at nine then they should have purchased at nine so they're not getting the contractually agreed price now if that out of pocket an extra dollar exactly now if it is sold later at fifteen then the difference between ten and fifteen would be the last profit not allowed under the is due agreement we agree with respect to certain transactions but with respect to that is that under her vos yo integrate to a separate account he had a separate account his name under different is that those actually aren't prohibitive but that's the out of pocket loss the difference between the purchase price and the contract price on each transaction thank you thank you both