years may please the court your honors my name is jeffery abraham and i'm appearing on behalf of appellant larry marson who is a plaintiff in the proceedings before the district court this appeal follows the district court dismissal of plaintiff's claims on the rule twenty six motion and interpretation of rule of law accordingly this court employs a de novo standard and reviewing the issues presented on the subpoena the claim plaintiff is asserting arises under section sixteen b of the exchange act i as recorded by rule four fourteen of the securities act of one nine hundred thirty three then became the registrant of the securities under the federal securities law by sue mean or succeeding to the registration statements previously filed by men's wearhouse with t b i even utilizing the same filing number with the s c c as one previously used by men's wearhouse the reorganization was completed on january thirty first two thousand and sixteen or knowing days plaintiff would have been free to file the sixth section sixteen b complaint on february ninth two thousand and sixteen following the statutorily mandated sixty day waiting period and the reorganization also took place without the required shareholder approval required by f c c rule four fourteen c the district court ruled that the reorganisation deprive plaintiff of standing to sue because t b o i was not the issuer which is defined term in the exchange act within the meaning of section three eight and that issuers to find this any person who issues or proposes to issue any security and more specifically the district court relied integral to the rationale of the court decision being you know the fact that it's factually there factions distinctions doesn't mean that it was an integral to the rationale but even if you clear that hurdle you would have to persuade us that we should reach some other legal conclusion on that question ok you should reach an other legal conclusion on that section because rule fourth fourteen specifically provides that in this case the new issue the issue or t b i is the same issue or as men's wearhouse for key doesn't relate to section sixteen be a provides only that an issue or succeeding to another corporation after the cert rate was granted in the us well rule for fourteen doesn't apply to section sixteen b but this was a reorganization which took place pursuant to rule four fourteen and rule four fourteen provides th issuer within otherwise you otherwise would be unlawful for t b i to be registered under the security sack because they didn't file their own registration statement so it is very much the same issue or as men's wearhouse it uses the same registration statements it follows uses the same file number in a court for form it's the exact same corporation except now it's a subsea t b i is a holding company of men's wearhouse through a merger of a wholly owned subsidiary form specifically for this purpose but more importantly the supreme court has held itself in pure stand which we cite in our brief that dicta concerning the statutes meaning does not control the outcome of future actions and i  couldn't say it better than the supreme court it's the supreme court said is this one of us well let me just tell you what the supreme court said which we quote in our brief is this court once having written dicked calling the tomato a vegetable band to deny that it is a fruit for ever after it was speaking as to its own prerogative not our prerogative i respectfully disagree if it's dicto it's stick to but let me speak more important had the court  case you had a previously existing issue with its own registration statement and it was a merger so that there was no or came in even made by the plaintiff in that case that it was a successor issue or that wasn't even an issue in the case that this was the jacobs decision and briscoe and he gets a test for how you whether something is dicta in the context of statutory definition he says in order to do so the court would cite the statute quote the statute and discuss the interplay between  and the new principle now i will grant you that the court and cited the statute i'm not quite sure what the statute but i'm absolutely certain it did not discuss the interplay between the text and the new principal this is a new principle of law it's section sixteen b to the extent that people companies could simply reorganize in violation of rule for four fourteen without shareholder approval and just get rid of any potential sixteen b case by doing that thank you ron or result was dictated by the supreme court's result in dollars fee mendel where the supreme court unanimously held that the only textural restrictions on the standing of a party to bring suit under section sixteen b are that the plaintiff must be the owner of the security of the issuer at the time that the suit is instituted here the issuer was men's wearhouse that's a complaint of short swing trading that eminence engaged in however at the time of suit  that the plaintiff shareholder was a shareholder of the parent corporation and not only does goals make clear that there are no standards no standing in that circumstance because the plaintiff is not a shareholder of the issuer but is a shareholder of the parents that this court has many prior of the issuer and preclude any action on the short swing profits is not something we should be concerned about i don't think so your honor i think certainly it's not present on the facts of this case and the facts in this case but generally ye know allow that process i think the supreme court has been clear in this court in prior decisions that section sixteen b is a strict strict liability statute and that courts should not be getting into the policy of looking behind it as to congress relied on individual would implicate the policy concerns but in untermeyer this court said even if there is an allegation of a fraudulent reorganization that doesn't mean that we should get we should look into that when assessing whether there's appropriate section sixty to be standing or not because certainly the and this court recognize previously that the policy concern that you're raising is absolutely present there when there's an allegation of some timing issue to deprive somebody of standing nevertheless because of the strict liability nature the statute the court can get into and again here not at all fraudulent doesn't match it's just not possible it's not possible there's so many other shortcomings of that allegation and in terms of the sixty day period there are cases where somebody says oh no i concerned about being prejudiced file suit and there's there's been some to i just want to spend a moment addressing this for fourteen issue i think it's really mischaracterizing what happened in the reorganization it was a holding company reorganization but men's wearhouse continues to exist men's wearhouse is still the issue or under the statu continue to maintain the asset so it's not a it's not a sham type setup if you will even if you are worried about that policy concern men's wearhouse continues to have the assets mr abraham says well the rule requires that somehow the attitude be transfer from the predecessor to the successor corporation but that didn't happen here and that frequently doesn't happen because in practice as we showed to the new action letters that are frequently provided by the sea the sea takes a view that as long as you're indirectly owning the assets from the parent level down to subsidiary level that's enough to satisfy the rule even though it's not technical requirements so mr abraham takes the leap from rule for fourteen saying the need to be a transfer of assets to saying that a transfer actually happened well didn't actually happen frequently doesn't happen and in fact it doesn't matter because what because this court has been clear where the surviving corporation continues to exist you don't have standing as a shareholder the parent corporation that's a square was sufficient enough to confer standing period and the supreme court was has ruled inform us mckesson and the f c c is as implemented a rule in sixty two that the purchase that takes you over ten percent does not constitute a magical purchase or sale because it cannot be based on inside information there's no inference that that purchase took you over here there was a purchase of one point two five million shares in a single trade reported on the my client's form thirteen d which is the basis for the suit in the record is also  stock exchange consolidated tape which shows a single trade in that same amount mr abraham has complained about that not being authentic ated he attach that to his complaint it's incorporated by reference it in the complaint and since it's in a documentary form it should prevail making his claim that there are many smaller trades not possible and lastly he argues that there might be liability because of a group type agreement that would have collectively put men's wearhouse over ten percent between  nence and the board to two problems with that the agreement was not between eminence and the board members it was a standstill agreement between eminence and the company so there's no agreement and you also have a have to have a common objective with regard to your agreement he hit year ruled that a profit motive is not enough for a common purpose to have a section sixteen b i'm sorry a group under section thirteen the no further questions all you know the rest of my time yours  one point you're honest i should make is that this court an american standard now that the term issuers a term of art relating to its own registered equity securities that's a five ten f second ten forty three ten sixty two  hundred seventy four decision by this court and in this case t b i is the issuer because it's the z the entity that has the equity securities registered with the s c c men's wearhouse in contrast t b i is in fact the issuer and i'll go back and say that will for fourteen provides the same result i don't need to re argue that point and all the other cases were ones in which there was were number one acquired issue or number two and issue or number two became a wholly owned subsidiary of issuer number one that's the same thing that happened in godless same thing that happened in untermeyer it's the same thing that happened in every case point and kahless itself is dicta and i go back to the points i referred to before that it's ticked up if they were going to change the definition of the statute inconsistent with american standard they would have had to lay it out a little bit more specifically also i'm not accusing mr schwarz as client of fraud i'm just noting the timing of the merger which was done in violation of rule fo fourteen c which unequivocally require shareholder approval pursuant to a proxy statement was very conveniently timed to cut off plaintiff's standing to sue and that should be it i believe it should be a concern to the court though of course i have a prejudice of lawyer who represents the plaintiff in this case one point i will rest on the papers on the issue of the purchase i think even judge judge abrams said that why don't defend show us the documents which demonstrate that in fact was one purchase and i think that's where she was leaning in one of the issue of common objective i believe that the fencer misstating what the common objective is in this case the common objective was voting they all agreed to vote their securities in favor of the existing board of directors or as recommended by the company through its board of directors so t b i s the issue or in this circumstance it's a completely different set of facts than ga list in a very subtle way but nonetheless different we have pledged a prime facie case under section sixteen big and for those reason i respectfully request that the court reverse the district court's decision