subject any questions your honour's may have i intend primarily to address the district court's erroneous holding that the seeking alpha articles published in two thousand and fifteen or early two thousand and sixteen could not as a matter of law constitute corrective disclosures and not whether the whistleblower complaint expressly applied in the last causation context in apollo group inc securities litigation what the market is deemed to know or understand regarding particular information depends on the intensity and credibility with which that information is transmitted that principle recognizes the distinction between information that is shown to be readily and easily available to investors and information that is shown to be only discoverable by combing through and analyzing obscure legal or agency documents were similarly esoteric materials the district court ignored that principle instead incorrectly assuming or presuming that information theoretically find a ball somewhere in the public domain no matter how esoteric or far flung it might be was indisputably known to all market participants because ice shares traded in efficient market we are aware of no th circuit case ever endorsing that standard to the contrary this court held in hannan that whether particular information is actually entered the market and been incorporated into the stock price is a question of fact that depends on proof through evidence and cannot be resolved through assumption or presumption under the correct standard which the district court failed to apply the relevant question with respect to the seeking alpha articles is whether plaintiff alleged particularized facts to afford plausible inference that the market did not previously know about or appreciate the significance of the information published in the articles not as the district court reasoned whether other market market participants could theoretically have done the analyses or research the seeking of authors did without any factual basis in the record suggesting any other market participant did those analyses or research applying the correct standard dismissal would only be proper if it was plain on the face of the complaint or otherwise through judicially noticeable sockets that the information was previously known to you and appreciated by the market the record here supports precisely the opposite inference plaintiff has satisfied its pleading burden consistent with well ninety's particularity requirement as this court examined it in person and gilliatt it based on the nature of the subject information and the price declines associated with the later disclosure of it st plaintiff plausibly alleges that based on the nature of the information compiled and analyzed for those articles it was not known to the market or its significance was not understood by the market until the seeking alpha authors compiled analyzed and disseminated it and the way we would know that is just by what on the day the article both significant drops in absolute numbers and as percentage declines and in addition there in response to particular these blog posts are out of other referred to as articles  but that's what i just can't remember like when you know november th whatever article came out you court you track a corresponding decline in the stock price precisely and in the media decline your honor with respect to each with respect to each one ok with respect to each one and that is that that's how we know that the market hadn't previously absorbed the information that was disclosed is that well that's it that's an indication that the market did not previously know that information because  creates that the market was was not previously aware of this that the that it is new to the market and it not previously been incorporated in your view does it matter that these blog posts were anonymous no it doesn't your honor it's the information that is disseminated in the walk host that is important on that point in that case in re bank of california securities litigation of judge guilford in the central district address this very argument that because the blog post incidentally was by the same seeking alpha author ereli it says as couple the blog posts here are that it had to be discounted because it was simply the opinion by an anonymous author and that and the judge said no that's that's not the case there's no requirement particularly in for instance of where the information comes from from whom the information comes over with regard to the erhard compliant you're saying the exact opposite that because we know who it's coming from and what he says that's why it's more than just a mere announcement of an investigation well who it comes from or from where it comes from can can help determine the intensity or credibility with which the market transit the information is transmitted in the market course the our complaint is a separate issue than whether the information was previously known to the market which the seeking alpha author or issue presents so yes it can bear on the credibility and intensity with which the information is presented but just because something is anonymous these are as we understand it widely followed blogs and these are people who've done a significant amount of research to come up with the information that's presented on it there's nothing to suggest that an opinion i mean after all as the judge judge kessler commented in the community health decision again this was based on a whistleblower complaint and i think it applies equally here and it all factual representations almost all of them to some extent involve some level of pain analyst analyst reports even even in admissions in court and complaints the question is you have to weigh each one on its facts and that's why this comes down to a very fact specific issue that's not resolvable on a earhart complaint the trial he loses would be seeking alpha article still be considered a corrective disclosure in the hypothetical yes it doesn't it doesn't but why would it be i mean then wouldn't any abuse by short sellers well at the end of the we have to prove that the market was defrauded so here we're only at the pleadings of course at the end of the day you have to prove that defendants made a materially false but as a practical matter i mean if you view that the danger in discounting information simply because it comes from a blog post and hasn't been necessarily at least yet confirmed by an internal company investigation or regulators who have a lot of things to do it may not  may not proceed against the company for all sorts of reasons you don't need that kind of confirmation just to have a securities claim in fact the defendants are trying to do here is say well this case is an outl because if we don't find anything wrong in our internal investigation and right regulators haven't brought any cases or any actions against us based on what your heart is alleging and so you know our auditors have given us clean opinion so there's nothing wrong here there's no securities fraud well that that really i think is judge also made the point in the altie case solar case sort of has a fox the chicken house quality to it that would defang the securities laws that the relevant question is and this you know judge and whether the market as of that time was can it can be said that the market has that time was had been missed misled as to a material fact doesn't matter that someone else confirms it or not confirms it later it's what the market believes and you know at the pleading stage oid to we don't have to plead plausibility but then of course later you would you would reduce proof of this trial you would see what market makers you could you could subpoena and then have testify market makers analysts to see what they interpreted as meaning of disclosures in the market at that time and so it's not that we just get a free pass and say oh here because this sort seller  comment and has its own reasons for making these comments that we automatically get to you know get to a win here yes i'm just confused as to your position on where we would draw the line because i guess i understood our prior cases to suggest that there needed to be some kind of you know complex analysis or sometimes kind of specialized knowledge that the whoever the author what one of these blog posts you know is relying upon and it's beyond the ken of just an ordinary investor and that sort of how we know that the market had previously absorbed this information i sumit you're not saying that you know any time somebody just does some really basic you know if you searches and put something together in an article and puts it out and you know the stock goes down that i soon you're not saying that that is going to be sufficient as a corrective disclosure all right well i had two points st on the  allegedly made false or misleading misrepresentations about it when the printer was introduced to the market there were industry analysts that said there were problems with this printer the court then that the district court granted summary judgment saying that that that saying that that this is a this is a situation of proof through evidence you can't just assume that that there was nothing that the defendant showed in that and that contacts that was a that was where they had the burden of proof but there was nothing that they showed that that indicated that the market widely knew of this that it was circulated through newspapers or in otherwise widely disseminated and so that is a key case here and i think that the bank of california case also also holds that principle you know ok but help me though understand we have to draw a line if we were to ruin your favor because i'm again would you concede that if somebody just present some very basic analysis that yes somebody has put together a b and c but i mean my goodness it was those three pieces of information were out there they weren't hard to find you didn't need any specialized knowledge to synthesize them fact appendant but i'll grant your honor that an experience where so just some of the cases a defendant cite the bluer case i think where the author said i could find this within a minute on google or something it wasn't particularly sophisticated analysis it may be harder to allege  flaws ability there that the market didn't previously know of this and so you know it wasn't baked into the marketplace yet and i think it's always going to be a question of fact that in that case you know the defense may have a better argument that there is not a not plausible it's not plausible  the market wasn't previously aware of that so the possibility really element here is the is the line and it is or because it's a case specific determination only in the rare case i think can it be determined a motion to dismiss an going to be reserved for later in the proceedings when that can be a deuce through evidence and not always there will be the occasional case i mean if it's something on the you know the new york times the front page of the new york times i think it's going to be a hard case to make that it wasn't plausible that it so that we can't just assume that the market already was aware well it's the it's it's two things it's it we talked about the stock price reaction which is one dollar objective criterion i think and these are all meaningful immediate price reactions which indicates the market didn't produce  had written had conversations with mortgage brokers had you know f c c foyer requests over the previous few months you know that stuff that it's it there's nothing in the record to suggest that anyone else had done that and that is you know we think those are pretty extraordinary measures that the seeking alpha author kind of collected this information which in its native state you know eleven lone document by itself may not really raise anyone's interest rate but if you're looking at hundreds of them and making a conclusion based on that be advise practices that is something that's that's also new information to the market that compiling and analyzing of that information is relevant investors would not have appreciated the significance of that information previously and that's you know we have plausibly pleaded that again that's something that we're going to have to prove at trial but we think we've flaws we believe that so it's essentially the the nature of the information and the you know extensiveness i think with which n your honor was on the panel intervene and it is one of the many lost causation cases that of courses populate the th circuit so the starting point is the basic stock price incorporates all publicly available information because of that competition of investors to ferret that information and go find it that's a bedrock principle under basic and now to help with drawing the line establishes a legal presumption from the beginning of the case including the pleadings that that the stock price incorporates all publicly available information ok what do we do with that presumption the existence of that presumption at the starting point of the case means that the plaintiff in order to rebut that presumption has to plead facts and by the way it's not a plausibility standard in the normal sense because this court's decision in oregon public employees versus apollo says it's a no and b standard so what needs to happen the plaintiff would need to plead facts explaining why in this case the stock price in an efficient market did not incorporate all publicly available information now how many facts or not so yes but i guess i guess this is what i'm confused about it seems to me somewhat circular we start with that presumption but then if let's say were able to show the not not this case but in hypothetical case one of these seeking alpha our calls come out comes out and the stock drops by fifty percent that day and there's just no other explanation in terms of other market forces or other information about the company that would explain why in the hell does this not just lose have its value in that scenario even if that article gather nothing but publicly available information don't we have to assume that my business not market must not have been aware of the  the the standard what is the point of a need to do to overcome the presumption and get into that world well the plaintiff needs to plea in facts and we also know by the way from metzler in in this circuit that i don't know what you're looking for there they explained why they thought this information given the difficulty of of gathering at and the time intensive nature that why they think that means the market hadn't already become now ok now let's come to what they are going on appeal so that raises an interesting question how hard was it to find the information but i come back to basic basic versus latins basic  the presumption simply by basis of the a veil ability of the information not the publicity but the availability of the information so how do we know that how do we know that other than even the language of the case cast your mind back to or pick up the phone and call the company the information of bailable to the average investor in one thousand nine hundred and eighty eight of stuff we now know and i see finally for goodness sake is going to be incorporat publicly of it in the stock price quickly is now a mouse click away so let me come back to it from a procedural posture as well as substantive the fact that these court records and in real estate filings all publicly available every blogger admits all publicly available easily to get at doesn't change the fact that the presumption exists that all of that information was already incorporated into the stock price again the percentage these are going to the hypothetical i posed in which the article comes out in the stock drops by fifty percent that day articles based completely on publicly available information facts demonstrating the complexity of the information not whether the information was sufficiently disseminated but whether it was sufficiently complex that it required some additional expertise why why when we see the that's the case law but i'm asking you because we're going to mean i don't know what we're going to do in this case but it seems to me we're going to have to charge a little bit of new new ground here i'm just trying to figure out so  only thing new that comes out in that seeking alpha article that results or corelate of to a stock price drop is that analysts or their bloggers opinions are speculation not opinions synthesis wasn't this green something together just as your opponent said like by itself this one lone document ok that doesn't mean anything but if somebody spends you know a month going through hundreds and thousands of files and says here is the results of my my analysis of all of that that's new right even though in theory everybody could have done any one could have done that everybody could have known that if there is analysis right so again the plaintiff need to plead facts demonstrating that there is analysis in there that or is it just speculation and opinion now we have to look at the seeking alpha articles encourage your your owners to do you will see that they are not the kind of professional and analytical  articles that that connect dots and demonstrate some specific problem never disclose they are if they invite the public to draw their own conclusions they specifically say we have no particular expertise in these parts in these areas so ok did the did the plaintiffs meet that burden and annoy me to say this falls with an exception to rebut that presumption and if lose where the market reacts to the possibility that these issues being talked about by the blogger could have an adverse consequence to the company but i want to talk more generally about rule nine b the particular car memo that the purpose of it is to give defendants notice so they know what they're facing so i can understand why a big s c c announcement investigation doesn't meet that requirement because typically there are one or two have put some burden on a plate of not to make accusations of fraud in the absence of having facts with a little broader than just notice that said we have specificity on what the bloggers said putting aside that they are anonymous we also have specificity that the bloggers are short in the stock so we know that they have a motive and so investors can look at that short and they can react to that and they can react to what does this mean to the stock in the future maybe it means that there's all sorts of misconduct going on that's going to result in some adverse action at some point because the bloggers are reporting adverse action the reporting facts that someone could think might lead to adverse action thereby sort sellers so there's also communicating the possibility of a short attack knows a lot of confounding information that door d pharmaceuticals cautioned us  we need to see in terms of the corrective disclosures funny back to will nine b what would the plaintiff need to plead not just here's the face of the article but also what is it about that article or the blog post that already public can digest it in stock prices so with respect to ninety maybe it collapses because we can take judicial notice of the blog articles and say on their face they don't meet that standard how about the revelation that for our requests that there was an f c c investigation i mean is that really publicly available i mean it's a fact that obviously exists but that seems a little bit different from information they can get from as you see filing attend  whatever maybe i mean this seems you've gone beyond that you have to now file for your requests with s e c and figure out there's investigation that seems a little bit beyond your typical publicly available knowledge preview they feel from the following class action the district court held that for request meaning it's a person can yes you have to write a letter and get the information but you are still a member of the public and it is presumed again that market participants and information hungry market is going to do what it can to get information now specifically we haven't talked at all about the another critical flaw hears which is that the disclosures don't match up with the alleged false statements right putting all that aside the problem with this as you see for your request issue is that plane just pointed to no affirmative statements that were rendered false by the existence of in this investigation there are no allegations that the company was even though we talk about that at the end of it i see that i'm getting close to the end here but i want to make sure we've attacked addressed all the issues but i do think it's important as we haven't talked about it that even with all of these issues we've discussed there is still a lack of grooms between the corrective disclosures and the alleged false statements in those three categories  believe that let's say i do want to mention here well big picture you know that the federal secure private right of action of the federal securities laws is one aspect of a much broader federal regulatory and legal ok as a remedial piece of this it is design is as door pharmaceuticals made clear to provide a remedy in an appropriate case where a loss has been caused by a fraud a fraud that has been disclosed by the relevant truth a fraud that has been ferreted out by others not necessarily by folks seeking the remedy the federal security must provide all sorts of other mechanisms for the ferreting out of fraud for the deterrence of fraud whether it's sarbanes oxley in terms of requiring independent directors audit committees auditors etc so the concern that if the plaintiffs in in private right of action for the etc it was a very nice sum up but i actually had another question for you that related to the topic that your opponent decided not i saw the light and want to know that as well not very well done but what's the person's is it erhart or just maybe in a in a nutshell what is the defect with relying upon his allegations as a corrective is it just his position for example if it had been the c f o of the company had you know walked out in front of the company and said i've just resigned there's all sorts of rampant criminal conduct going on let me tell you all about it and you know so the new you know have the incentive of trying to bring a lawsuit to get money just makes this announcement is that is that the problem is that we have this lower level person and information stock price reacts the court holds that's not a correct disclosure because it only has disclosing the risk that those complaints would lead to a problem in the future and by the way the only case i've ever seen where the risk never took place was current here instead of in the wall street journal it comes out in a lawsuit now the market would react to that just like the wall street journal article by say well these allegations could lead to an adverse action whether it would have or sex so it doesn't matter in your view what the person's position was were how specific the allegations are in the complaint as long as it's a former employee and it's a complaint about wrongdoing it can never be enough no i'm not going to and we are just so happy so so where will you draw the line so you're not going that far what would you add to my it's not may not still be good law in this regard there you had a higher level whistleblower write the controller and it's the court points out you have and then analysts report and a whole bunch of other things to go with it right and and i think this is the most important part it was exact congruity between what the whistleblowers was disclosing and the alleged false statements in the securities case you don't have that here with mr earhart and i'm sure your honour's have read the about thirteen or twenty or so isolated instances of what he perceived as some sort of wrongdoing most of them were  possibility that this would lead to fines or violations in the future it wasn't necessarily identifying actual violations some of it was water cooler gossip but none of it renders false these statements challenged by the plaintiffs in this case the closest are the internal control questions but what i'd say is the allegations by air part are sufficiently anecdotal like an metzler which doesn't create the there's also a problem that it's a a person at a lower level in the organization i mean no disrespect to lower level employees i've been a lower level employee the problem with lower level employees is you don't have the same visibility and expertise as somebody higher up i don't see why that matters if the person is is not just reciting nd hand information but is resigning things that they allegedly themselves witnessed who cares if it's the mailroom person if that person witnessed you know conduct that render some as creating a corrective disclosure that it would it would create havoc because it gives a lot of leverage to adversaries in litigation with public companies to create correct a disclosure  so you're might you might well be right there is a policy matter but it makes it very difficult to determine where you draw the line do you aluminite something because it's in a complaint but you allow it because it's in a press conference where somebody says but i'm never  to these cases are or case like here your honor suggesting a hypothetical and i don't want to and the court has been very clear in saying that it is very cautious about ruling anything out in terms of the theory of last position or the other the fact is we have a lower level employee here who made allegations some of which are hearsay and secondhand but most importantly the ones that he even says are firsthand don't read the statements false and and whether there could be a case where they do where it's perfectly can grow and which is a requirement by metzler for last causation purposes i suppose potentially that could be the case that's not the case here ok all right thank you counsel think you push it the arguments you'll certainly be generous in giving you time for a battle since we let him go over to thank your honour's number of points st on earhart make no mistake about it what mr stevie is advocating here and what the district court has held is that no allegations in a complaint whether meyer and then in the later decision sabse off which held that a whistleblower complaint because it is not essentially a finding of fraud could not constitute a correct disclosure imagine the policy regime that that would create i mean the idea that the securities laws would allow for defendants to get away with securities fraud simply because they didn't admit it or it wasn't found to be fraudulent that that is just absurd i think and mr c g mentioned l d k it's ironic because the analyst report in that in that case i think was in barron's was by an anonymous source so i mean one hand he said well you can't have an honest sources to be corrected disclosure on the other hand that's how they try to distinguish all the k they also talk about he sneaks in a couple of times this you incorrectly said it's a pretty ninety case the court until he had said that you know assuming without deciding in that case that we will apply ninety here's what ninety requires it requires essentially notice the pleading of sufficient facts to allow for a plausible inference that there was a loss causation and that the facts are sufficient facts to say that you know we that discovery may bear this out that's all ninety requires in this context so there attempted distinguished cases a couple of them as pre nine b is really irrelevant because the issues alpha articles the in from the sort of elements that would lead to the plausible inference that the market was not previously where the information was disclosed to them we have course to plead that in in the sections in our complaint where we say specifically with respect to each category court to try to help us understand just how difficult it would be to find all this stuff is about what the purpose of the filing was well it's it enhances i think the showing that we made in our in our complaint i don't think it's necessary to it  because as we were talking about earlier the nature of the obscurity of the information and the compilation of otherwise information it otherwise would have been appreciated by the market i think does the job enough and with respect and i don't really have to see what more you have to show other than that and that there were appreciable stock declines that the record does not indicate were were caused by anything else defendants have not provided anything through judicial notice judicially noticeable facts or otherwise to suggest that the stock declines were caused by anything below got this wrong they are not focusing on the antecedent question which i think your honour's are picking up on which is was the information publicly available if the information is publicly available meaning known to the market then then yes the general standard is that it's digested in reflecting the market price but that here is whether the information itself was publicly available was known to the market and we say that we have plausibly allege that it was not if they were right in the public domain but that the case couldn't have come out as it did if it were automatically that because this was in somewhere in the public domain the market had fully digested it apollo even more so and i reckon as of two thousand and ten ruling it's the men issued a stock a negative stock rating and so the court there even after a trial record said that the th circuit reverse the judgment as a matter of law for defendant on that saying that you couldn't say a reasonable jury couldn't find that that added something to the market it wasn't previously known and the court specifically where you just hand in in the context of loss causation so i think it's pretty clear that the law in this circuit is is in our favor on the relatedness point i think also both defendants and the district judge got it wrong and they ask for mirror image disclosures essentially we that even with respect to the narrow set of internal control and compliance representations that the court ruled were actionable those relate to ok the staffing and funding of internal controls and compliance infrastructure but that that that if there is a connection between that and disclosures that indicate that the internal control compliance infrastructure was  deficient otherwise why would the market why would investors care about staffing a internal controls applied severe structure if it did the implication was was not that these the internal controls in compliance infrastructure are sufficient also we have a number of