is no different than the on the distinction that the nd circuit in the now vacated decision xander pointed to where the supreme court in th rd seemed to go back and forth on whether what we're dealing with here is a circumstance in which you have to ask the question is what you're suggesting on the half the plane of something that  surely would have considered as causing more harm than good or whether it is one that a prudent to be sure it could have and i think that distinction to me and maybe it's a distinction without a difference and the nd circuit was making up a an issue out of whole cloth but it seems to me that that that's an issue that would be helpful for me to get a handle on your your argument is i get it is l so wait a nd are you saying that it's really a distinction without a difference the nd circuit and drawing that comparison i was making a distinction that shouldn't it just that it really matter what you say would or st file quite some time ago you haven't filed anything supplemental withdraw to our attention are there developments in those other cases that you would bring to our attention would have brought  the misconduct you know regarding the antitrust conspiracy and i think what we would have done and perhaps should have done i regret not doing this is provided the court with the rule twenty eight j letter regarding the outcome of that case on the motion to dismiss in august of two thousand and thirteen i think reason being the reason we didn't do so is that at the time our this case was stayed pending the outcome of cand supreme court and by the time we came back to a time to pass but i think that the if and then outcome is particularly relevant here because you have a defendant in both cases the former c decision and gender i mean nate they kicked this thing back and said in effect hey you didn't pay attention to whether the kind of alternatives you were suggesting were consistent with the complex security send corporate disclosure laws that people operate under and we we think you need to do that in the st instance and i think they also were pretty clear about noting that the government sort of a friend of the court in that decision had taken the position that conflicted are we should we be paying attention to that bain line of reasoning here the government's position in chander and if so where does that leave you i think the government's gander is worth paying attention to and it would lead you to find that the motion could have been nickel here should be reversed because on unlike in the case of gander you have at least one who has disclosure obligations on the truth and should have made the disclosure under the securities laws which would have also satisfied her disclosure obligations under this so if you adopt the government's position as to what is the supreme court viewed these arguments and sending it back to the nd circuit i actually argued cmdr in supreme court and the arguments raised by the petitioners and the government in that case the court was open to them but they had not been made to the question presented in a certain position and they only raised out act during the regular briefing so i think more than anything else the court felt that they just weren't right and pending and there are alleged things that won't disclose now the problem is those aren't clean in your complaint right now but maybe you could meant to add in more specifically what should have been disclosed so let's talk about that one for a minute what would you add the forty case that were found to be sufficient you know the facts alleging the enterprise conspiracy largely the same ones alleged in our complaint there have been just some developments since then you know the the the criminal complaint that we were concerned was going to be filed a complaint was filed subsequent to our complaint by the department of justice and the state attorneys general filed their complaint their civil complaint with our going as a defendant there you know the name can be some discovery now in some of the civil antitrust cases that have taken place that could add to the way how gauges we make our just what didn't in the federal and state criminal complaints you're correct about that yeah correct that there's there's no well but we're trying to do some some bring down on the stuff ourself in terms of research but i'm not seeing where the then that i expect mr klock is going to be talking about you can go ahead take it up right now if you keep talking about they should have disclosed they had an obligation as close as it is going to inevitably come out this probably should disclose and the by interested politicians and parties that casts some shade on al are going on but that that that nothing else know that you've got no information to indicate they participated in any any antitrust conspiracy at all except for a couple of press releases that you pointed to and that's public information so contrary to your assertion in your reply brief that public information stuff has nothing to do with this you've got nothing but public information let's go ahead and take that argument on well that in fact you know that issue is no different than what you're dealing with in the security d in the specifics about what you wanted to true but this information a lot of the information you know this this appeal is the pending for quite some time ok i know this information came to stand i understand that argument perhaps i can take you some of a little concerned but your some of your other proposed remedies and want to make sure to hear about you can do is stop buying and selling socially freeze the funds that is permissible under the scared easels there would be a require disclosure that you have to make you have to file an a a but you would not have to say why it will it will which is kind of the point well as the if that if something if that's the point mr bunner off then you've got to face it head on the could have done more harm than if the signal you're sending to the market one action now we're told that's not enough because you know they have to disclose in the security was in your list of eight months things that would be worse to disclose now rather than later even though they know that they're covering up misrepresentation so then we say well ok they're putting in and just moving to the cash until unless and until the artificial inflation ends and you're saying that that the market doesn't know that nobody's paying attention to that or over as the as the defendants point out that by by moving into tash you are potentially doing harm because the investment drag argument there right well i mean this is this is great gets a little frustrating because yes your would be some grand but the point is there's only drag if the stock is priced which it is the stock is artificially inflated and go down when the truth is revealed then you haven't dragged it all we didn't come up with this language you didn't come up with this language there was a there was a widespread understanding amongst the courts of appeals that the way to approach this with the presumption to the fiduciaries in the supreme court said you know i don't don't do that and you may be right that the reason they did it is because they wanted to loosen this up maybe that's what they're had in their mind i don't know but what we have to deal with is what they actually said and what they said was at one point if approved investor could have thought this was going to be more harmful than helpful than a motion to dismiss that's a real important tool for reading this out we've taken away the  prudent presumption that we've given and we're pointing you to the motion to dismiss you court's use now what are we supposed to do with that mr bonner off on the one hand you seem to be saying you're in a catch twenty two dollars they couldn't possibly have meant this on the other hand we're looking at supreme court language that says what it says and the supreme court pointing directly to the motion to dismiss and saying that's your tool to we discuss out how we supposed to deal with that well two ways i think the st is to  look at the rest of the decision and not ignore it and not interpret that language in a way that's going to contradict the rest of the decision because if you interpret the could would standard the more one is the standard so broadly that it becomes essentially impossible to  beyond the four quarters in a consolidated complaint and i think that at this point there's been an appeal by decision of the district court or dismissing the basis of a talk at six motion what anybody your side is the one that said hey hold this case vendor comes out so got help now we are to your stand a high there are things that could be said is it is it right and fair to ignore the current state of affairs and say we're just not paying attention to that because nobody knew that two years ago where should we or should we in fact be paying attention to what  has come out in related litigation and say you know this this that there there ought to be leaves too much because there's information there that they are they didn't submit it to the judge in the why why would it be improper for them to be able to amend to take account of that in their allegation because even with that knowledge and with a track saying what i feel to be within the four corners of the a non public private conversation contemporaneous of the conspiracy that the assertion that the pleading that your position that it those things were in a complaint that that would still be something it could not survive a motion to dismiss because anything they did including disclosure would negatively  at the allegheny producer a found himself in a back door in the car period even assuming that this is what we need to accept on additional allegations that is true could have still determined that take argument head on here his assertion is if you read it that way you're ignoring your focusing on one sentence in an opinion and ignoring the import of the entire opinion mutai or pinion it's trying to say to you hey you court of appeals you've set the bar too high and if you read it the way you're reading it not only does that accomplish what the supreme court was trying to do and actually put the bar higher yet make it impossible to meet that i take it in the plaintiff argument off assertion that if you accept the position you're taking it to that you'd end up with a circumstance where a greater obligation to towed to the general public under the security their heads there are facts out there that show and demonstrate the higher standard of liability under the security flaws but those same facts assuming they were action which were a motion to dismiss has been denied because the court said you know what you played enough to meet that higher standard no your honor i am not suggesting that mr potter off would be wrong and all planted you sure you could waive that and and valuate the cost benefit associated with the various alternative actions that are available to them and then trying to associate it with the discretion standard given what was before her at the time how could we say there was an abuse of discretion when you really didn't tell her what you were going to say that was going to be any different than what you already underlying the conduct of the right to have that it be made by now yeah so that's my question and it's not a gotcha question it's as the serious what the legal basis if we want to assume for the sake of discussion we thought there ought to be an opportunity and that what would be the legal basis on which was say that what would be the d what would be how would we manage the standard of review of what was done in the district court and give you what you want in light of the youth accident that have come to light it would be highly prejudicial to be employees in this case to leave them without a remedy because they had the unfortunate circumstance of  filing in briefing at the wrong time whereas the answer you know the consumer plaintiffs government plaintiffs and the security point that's because they happen to be briefing their arguments later through no you know nothing other than than a random circumstance we're able to plead the fact you sent a lead to employees without a remedy purely on a technical procedure procedural grounds when there is discretion within that standard there is discretion that this court has to make an allowance in for the sake of equity as far as i'm sorry go ahead go ahead have to make a disclosure under the securities laws as a matter of law then whether it's a could were or would standard up to do here is going to look at her parallel security and disclosure obligation question of securities law in order to decide whether or not you've made out anough of an easy way to dismiss i mean i think that you know this courts can certainly take into account the underlying legal arguments and the since and one of the reasons i think both sides asked this court to wait on this argument until gander was decided with to see what happened in that court in that case and what the nd circuit says now on sunday you're missing here missing my point i take your argument now to be look they were going to have to say something because if they didn't they were going to be in violation of the securities law that's an assertion of law based on facts which are not played in the complaint that's before us but it does and if you're asking us and telling us in order to rule for you what we would need to do is we would need to decide a security flaw question that is was it required were they going to in fact have to make a disclosure and we're going to need to make that decision when there's been no briefing on that issue before us and we're going to need to make it on the basis of the facts that are before us because they're not in your complaint if i followed that line of reasoning right well i think that in fact the facts that are in our complaint are sufficient under believe and i think if you go back and look at the facts that are in our complaint it doesn't satisfy the ultimately standard which is all this court is supposed to consider we're not supposed to have to please see enter or any of that kind of specificity in order to please  that i don't want to get it's too far afield here but let's hear your complaint as it currently stands is bernie sanders said a colleague in the house said hey there's an eight thousand percent rise in your price on an antibiotic that's highly troubling and a national d advocacy group for pharmacists says effectively the same thing and on that basis you say we've met troubling a fall clearly there was an antitrust conspiracy that's that's the position you're giving us parallel pricing rinds is conspiracy and particularly then in light of the government investigations that were launched and the subpoena that was served i doze those allegations are increased implausibility hard to plead more specific facts than that at this stage employees unlike other you know unlike a lot of other point that don't have access to most of this information they have very little things going on this is you know what the eight circuits point in the bring the wal mart case and so you know we don't want to be in a situation where we parse each individual factual allegation individually and say that by itself it's not enough instead of looking at them in a the only other point i would make is them actually we have two very short points and i'll conclude one is that you know the question was put to mr aka about what would be a plausible claim to plead for a case like opinion that suggests they want to raise the standard to the point where if it's not a newly capitalized plan or a ponzi scheme no claim can ever be pleated government has not taken that position in its advocates priest and yourself would defendants stick pleading standard mean that a plausible claim could be pleaded against and because i think that's going to be particularly it could not and that should concern us know all right counsel we thank you very much for a well argued case very interesting case we got the matter under advisement we'll be back to you and will recess