proposed transactions with related parties of sixty thousand dollars which aggregates sixty thousand dollars the defendants concede the metric made a contract with the related party world after the signing for nine months this was a violation of the after said rule now our case runs from before the time that the defendants can see the contract was signed in fact our case runs from june twenty one thousand nine hundred ninety nine to the time of the bankruptcy the defendants say that this contract was not executed to october three two thousand however we're legit paragraph six and one twenty two of the complaint that the person for it didn't exist or october through two thousand correctly didn't exist at the time of june twenty first when we say that the oral commitment was made and we say that the court misapprehended our allegation the defendant chose to speak about a strategic relationship between that are common welcome obviously a relationship can mean many more things than a contract and they spoke of the particular song part after right and then when you finally have the signed agreement how you know how can someone disclose something i mean are you saying that they every time they had a draft they have to explain they have to you know how  parties contract if it drafters the draft in terms of what it will be like we do several drafts on opinions but we don't give all of you the drafts to say well you won first then your last person you want to get in and but you're not under a rule that if you do a proposed transaction for sixty thousand dollars with a related party you have to tell the stockholders well but if it's a draft how can it be that the draft is only better for us even if there was never a draft if there is an oral agreement that thousand nine and we played in detail the names of the defendants who negotiated the strategic relationship the terms of the strategic relationship and then we certain facts that are personal knowledge from which we try to connect the dots too and further part of it was zero agreement first two one of which was not mentioned by the judge in the opinion or at least in paragraph fifty four we allege that mr daniel who after this strategic relationship was made after this oral commitment to repay exist it took over memorializing the oral commitment he said we don't want to agree to a terminations liability clause with world com for three hundred fifty million dollars he was told by mr sherman who reported directly to mr drysdale guys back  so sorry for interrupting you certain the minimum usage part of the contract i terminations liability does not refer to a minimum usage it refers to annual payments and the annual payments the judge confused two different parts of the agreement the terminations liability refers to an annual minimum it's applicable and you minimums the underutilization charge if you are performing to some extent was limited to one half your  honor this is a case where the contract is just clear and the judge cut us in half based on a misreading of the contract to try to return to connecting the dots though mr daniels said he was told the reason we have to have a determination liability clause is that will come can get its money back that's how they get the most of this with pleaded with particularity when he was told who told them a person who reported to the person who negotiated agreement it's a very unusual agreement to tell somebody who owns thirty eight percent of your stock we're going to agree to pay you a three hundred fifty million dollars penalty number two network world is an obscure internet publication they said on june twenty eighth this is paragraph sixty four days and the reporter is quoted by us in the complaint she said she got the information from metro world com was upset about it nobody denied it in her it's a little trade publication it did not make the business wires or anything but it  right at the time the agreement was done there's this record there's archeological record that says that metro com was saying we've agreed to pay three hundred million dollars to world com the other dots are the eye witnesses mr daniel contracts and the defendants agree it's executed by october third and the rules are very clear if you file a ten q or a proxy or a ten k or as we say in paragraph one ninety two an amendment to n s k you have to do so you have to follow the rules and complete is not enough trying to insist that you didn't complete is not enough it's got to be misleading i'm saying that if they can it's misleading to say we made these contracts and things are going good but not disclose the terrible big contract with the related party that was even if they were three hundred fifty million which is six thousand times the disclosure limit they would be required to disclose it if it were much smaller so we addressed it in those places both as to the press release and mr herrera is this paragraph fifty two i believe now i'm sorry one twenty two in paragraph six of the complaint mr herrera the person who negotiated the contract for world com says we had a signed contract from metric by because they didn't have a contract because she said because we didn't have a contract before june twenty first i just think the judge misapprehended our whole case we first alleged an oral commitment they quickly memorialized into a contract mr rare cannot be discredited on the rule twenty six motion says it was signed by december nineteenth to two or three months before the offering for the rest six hundred ninety million dollars which was the whole purpose of this and then we go on it actually is signed and they still don't disclose it i see it is a seamless web of specific fact allegations showing how important this part of the strategic relationship was show how it was negotiated very quickly showing that it was executed by december nineteenth in a document we haven't been able to find but think about that we have they don't disclose what's legally required to be disclosed we go and find the signed contract we find the draft we find all the stuff we cannot find mr herrera says there's a draft we have made a discovery  you cannot discredit mr herrera at this time and if they do not disclose the contract whatsits once it's signed that's a double reason not to take an inference yes mr where at this point sorry we're out of water  a customer terminates the g s a or worldcom terminates the g s a customer will pay they all accrued unpaid usage chargers usage charges are capitalized term enough to refer to different part of the contract and other charges incurred through the determination be an amount which customer hereby agrees is reasonable equal to the aggregate of the annual minimum as that term is defined in schedule one of this  it comes up to three hundred fifty million dollars at the beginning well only if performance began and only if you weren't dealing with the terminations with annual minimum which you get into the the usage charges and the end  and another term of art which does have a fifty percent reduction year and you know it's an easy cheap shot to say but it is it is one of the dangers of doing this on a rule twelve b six  and that is just one of many pure fact errors that the court makes now in the excerpts of the record three twenty two three twenty three week have submitted on the motion to dismiss when the defendants made excellent arguments to try to make fact fact disputes in the motion to dismiss you are we submitted metric on the issue or metric on filing in its own bankruptcy the issue just what this global services agreement is this is three twenty two and three twenty three from the excerpts of the record and they say that metric common october three two thousand which we distribute but they say on october thirtieth two thousand metric common entered a global services agreement whereby metro comm agreed to purchase circuses purchased circuits from world cup circuits or etc and it's called the circuit agreement and they and they go through and describe how important purchases are the circuits absolutely essential the met metro comes network because they allow metro com to do this and that the parties negotiate an energy a circuit agreement which means that the g s a with the precept that world com would be a significant reseller etc and says metro comms position the bankruptcy now you're here's the underlying business which judge hamilton totally misapprehended banks the defense arguments on rule told me six motion there's an investment by three hundred million of world com they get thirty eight percent of the country there's an investment of total four hundred million by bulk and they get forty four percent to come in there's an investment of six hundred ninety two million by the public who get thirteen percent of the company after these favorable disclosures about the strategic relationship transformed the company connect to the air you have to get your cell phone poles set up and you have to get wired access points for that they needed will come to turn on circuits into liver circuits they had to go through g s a the third agreement as we call it ever to get to the reseller him and to resell this service the reason this was a good deal for world com is it was buying business they were putting three hundred million dollars in this company and they were going to get back three hundred million servers again as mr daniel said that's how they know i would say every contract that wants three hundred million dollars and it's the key to your future to be able to get your networks off hooked up i would say it's disposable there's a separate will well there's an f c c rule that the f c c integrated disclosure rules have certain substantive just like to to wind up and get give the points in your honor the main point is that in the business relationship will come as buying business they had an oral agreement that that's the way it was going to happen on june twenty first we pleaded with all these traces of it the defendants negotiated the agreement they knew about it they never even disclosed it after they say it was signed judge hamilton went wrong are are is in expecting on the motion to dismiss the defendant's assertions that the g s a because it wasn't executed until according to them till two thousand and three and then start to have a bite of terminations penalties to later that the g s a came third or came later that's not correct in the business way it had to disclose the other part of the strategic relationship at that time the court also made other findings that the g s a did not cause the bankruptcy or render metra common able to raise capital paragraphs ninety two to ninety five we have detailed allegations how that happened it didn't happen because of how much you had to be paid it happened because the company was on bankable once people saw this huge liability for a company in this situation because they have been promising to these networks for years and it hour on very little well as you know the trees design causation are so there's many causes called course that if course if they had been making money have the network magically but they had always disclose that they were like cars and they had to swing from capital infusion to capital infusion they were going to be profitable on this tranche of capital everybody knew that they discounted the future probabilities of more money they cite the positive value the stock in one hundred dollars ninety dollars eighty dollars based on this great strategic relationship with world com which wasn't what it was portrayed to be the stock was worth much less in those chickens came home to roost when they couldn't raise capital we didn't have the new pleading burden and loss of causation the time we did the complaint but i still think we pleaded enough that  these unknown risk is what caused the company to be unable to plead cat to raise capital and i respectfully submit that this was another fact finding prematurely by the court that went against the precept six and my time is up here i think they come  prospectus very thank you for the i'd like to take about twelve minutes and leave the other eight minutes for them for the other counsel i think what's clear and the court already alluded to it during mr level's argument is which are fully included in the excerpts the record they covered every possible contingency including the lack of a case that ultimately doomed the company to bankruptcy the structural flaw in th case is the one that judge hamilton painstakingly identified in her two opinions that covered one hundred twenty pages which required a lot of very careful dissecting both the documents and the cases that if the court can properly take your dish will notice the documents and hear course the documents were attached to the complaint itself and then the court looks at those documents not at the contrary allegations the fact of the company put out itself on june twenty first announced the expectation that the company would contract with world com m c i world com did announce the expectation that there would be a pa that would be reimbursed by one hundred percent for non research purring circuit provisioning charges that occurred during this ramp up period the reseller agreement amendment made consistent with this they cover only what happens after that the system is built out and deployed and what is that what happens what happens is that this is a wireless network that has to be connected and the wireless comply a quid pro quo for their investment it was it was standard pricing as judged person pointed out they were going to have to acquire these services from somebody if not from my understanding of the allegation unusual because the standard form of worldcom agreement that they attached to their complied as one of the other exhibits which the what they characterized as the first draft has those provisions and it has them in there one hundred percent not fifty percent of the provisions were actually negotiated down between the standard form of world com agreement to do a fifty percent liability at the end of the day plus which it was negotiated that world com would reimburse metric for forty percent of those post light up recurring charges i think it's very important to point out i think the bankruptcy documents do call this a circuit agreement yes that's that's the that's the term of art and it's clear from obligations to pay don't kick in until a year after the ramp up period the ramp up period is nine months the first payment obligation didn't become due until july of two thousand that's a  the first contract year was entirely post bankruptcy one of the allegations of the complaint that is just in comprehensible as that is the allegation of paragraph five that the proof that world com submitted in the bankruptcy of the claim that entire three hundred fifty million dollars terminations live villany it doesn't it claims less than two million dollars and it all relates to these you you net services that were being provided by that the company was going to incur liability to connect to the internet make clear that those costs were going to be substantial make clear that the company expected to lose money for the foreseeable future for stuff at one point it says for several years another point it says for the foreseeable future there was absolutely no concealment of the expensive costs that were going to be required and the prospectus made clear that another billion dollars of cash was going to be required in order to complete the three  she detailed them in extensive detail and you know let me just quote from the prospectus itself because i think this really drives home the point the under the cost of services and network interface with stories and the internet we expect these cost increase significantly as we deploy our high speed network those are the costs that subsequently months later became a body in the global services agreement thank you thank you own get into that in the second and then the third point that i'd like to focus on is the last causation point so first let point loss causation so there was a twenty eight j exchange after the supreme court's decision under a pharmaceuticals all right so the post offering same caesar alleged in paragraph one sixty nine to one seventy five so this is the period from february of two thousand and twelve the end of the class period in july of two thousand and one if you read paragraphs one sixty nine to one seventy buildout were false to the analysis the judge hamilton made of that claim was one hundred percent correct the problem with those allegations was that they were completely out of context metric time had announced a proposed deployment know was actually earlier than that there was a schedule that was attached i think alito was attached to the reseller agreement which is in the record that was the initial one that i'm aware of the notably the notion that the company was not being candid about its build out schedule enough equipment our bill that schedule is being delayed so judge hamilton's analysis of this issue was correct you cannot look at a quote from a press release that says we deployed in san diego and that was ahead of schedule and conclude that that's false without something says that that wasn't the schedule and the complaint doesn't even try to explain what their schedule was so her analysis of that was correct the second element that's contained in paragraph one sixty nine to one seventy five deals with the nondisclosure the g s a much time left under the ninth circuit's this court's decision and gone for it is required of the district court to consider all reasonable inferences from what's flood this is a very unusual case in this case one of the defendants is alleged to have invested three hundred million dollars in the company during the class period during the period when the alleged fraud was being perpetrated so what's the reasonable inference that can be drawn from that it can't be that that person was committing fraud money and then the debate typically is well was were those sales consistent with prior patterns or can you draw an inference from the fact that there were sales during that period in this case we don't have any there are no sales and in fact there are purchases three hundred million dollar investment by a investment creates and negative inference is because it's inconsistent with the theory of the case that these people these defendants were perpetrating a fraud when one of the defendants invest and loses three hundred million dollars during the period of the alleged fraud bankruptcy so under the allegations of this case the the only lost the only disclosure that caused a loss is the bankruptcy filing itself that is not the same thing as a disclosure of the decline in the stock price and a disclosure of the truth and that doesn't exist in this case and can so for that reason the what for that reason and all the others that we would urge the court to affirm the district