the district court here in holding that the latest complaint was based solely on publicly disclosed information the court's formulation of the public disclosure bar in springfield terminal cannot be in those countries could i just think you are the one but let me just focus on the aspect of the record that concerns me so you can focus on that ok yes in the complaint  you represent the real winner relator in the district court yes so so you know the complaint yes ok so the complaint says that the chinese pencils chinese manufacture pencils have unique characteristics which should lead the buyers to know what they're made in china quote without more right that's correct and your complaint there is correct and then ok and then in your opposition to the motion to dismiss you list three unique characteristics of chinese pencils something unique features of chinese made pencils to identify to with and those two are in the i t c report so given that how can you satisfied with it how can you satisfy this part of the looks like good characteristics of the kinds of even if even if i can see that this is a public disclosure which i don't have believe it is separately you cannot you cannot determine if they have made a false claim because you don't have a base going it's public disclosure you can determine you know you can determine it if you go look at the pencils but the pencil itself is not a public disclosure of a structure it's not one of the items that you have to have something that you have a big public disclosure you have to have something that's listed in the statute there's a public disclosure  to the defense comes from the quality of the pencils facts who are right and the quality of the pencils that say information about that critical was contributed well what was contributed was our investigation we spent fifty two hundred thousand dollars going to look at this who have not these many purchase could actually produce and actually did produce for morning your honour's i'm david ogden and i represent the apple e staples office max target industries for the blind and i hope to make progress two issues in my brief time this morning to emphasize them the first is to to respond to any concerns about holding the district court with respect to public disclosure which we think was a correct hold and for many of the reasons that been identified already of it second is to focus on one of our alternative grounds for opponents in before you that i did your honor and do we know from the record what's the answer to that well i think the most important thing about that point your honor is that there were later draws an inference from public facts  respect to what pencils what specific pencils came from china that's an inference he draws in his opening briefing page ten he specifically says that his allegations about identifications of specific shipments of pencils for which the defense made false claims of origin quote were based on the manifest information submitted to customs by all shippers and compiled by organizations such as pierce global intelligence solutions he doesn't have a basis to identify specific pencil or specific shipments he simply believes that pencils were imported from asia by these four companies these four entities and infers that they were in these shipments that's all he's doing so that's not anything he's adding that's an inference he's asking the court to draw and that in the from public baths to identify specific pencils when actually the public record is much stronger and this is why he obviously has not done anything beyond public disclosures of his specifics are based on public disclosures he's at it not and he's just asking the court to draw an inference which the government could have grown and the question for public disclosure purposes under this court decision in subtle manner is if the party public disclosures could at least have alerted law enforcement authorities to the likelihood of a long doing and here the public disclosures i believe did more than anything that this relayer has offered to decision the likelihood of wrongdoing because first of all all of the manifest information is there with whatever related relying on and second the public records specifically says that these defendants are import made importing pencils from china that's more than any of these inferences and i think a second critical thing which goes to both points and both to both the public disclosure and the scienter point is a critical change of position that the relator has made on appeal your honour's were quite right to say th of his case you low and this is why the district court below focused so much on these pencil characteristics the linchpin was his his claims that that that these pencils you just had to look at them if you knew about pencils all you had to do was look at them to know that they were made in china in his opposition to our motion to dismiss a fourteen docket sixty four he said a simple visual examination which shows certain well known unique features common to pencils manufactured in china and distinct from pencils manufactured elsewhere that was his theory below that's why julian focused so extensively on those pencil characteristics now he says something radically different he now at his opening briefing page twelve he concedes that pencils manufactured in the very countries could he says defend his claim those countries of origin could have the identical characteristics he says without additional intelligence that is beyond th appearance the quality of the pencil does not disclose that region in china it is possible that factories in taiwan indonesia and viet nam produce up standard pencils well that's flatly inconsistent with his theory below flatly inconsistent with what he presented and it entirely undermines his substantive case it also frankly makes clear that all of this business about pencil characteristics as absolutely nothing to what was in the public record already it also shows that his investigation these these facts he purports to found that these factories he alleges could have produced all the pencils but that's adds nothing because there's nothing to say that even if that so number one but the defendants didn't buy the pencils  factories didn't produce or number two if the factories couldn't produce all the defendants just that those factories couldn't obtain them from other sources outside china that look just like chinese pencils i e pencils in indonesia pencils in taiwan houses in viet nam that he says look like the same pencils now that change of position doesn't help them at all on public disclosure because there's a public disclosure that these defendants may have been importing confirmed that the linchpin below he conceded that the notice that he alleges that the defendants were on which gave rise to scienter comes from the quality of the pencils well if the pencils quality was consistent with manufacture in the countries in which he says they were claimed to have been manufactured how in the world can the appearance of the pencils give notice of anything other than it looks good it looks consistent and that isn't a simple failure as a matter of science or is this whole case and there's just nothing there the bottom line is he's conceded to try to solve a problem that he fails to solve on public disclosure that he has no case of senator and you know he knows it because what he does both below and in this court argue for standards of scienter that are at flat variance with this court's decision and the s a i c case he knows he can't show reckless disregard by a specific individual he conceded below he clearly can't allege that so below he said he was relying on a theory of collective knowledge said it as clearly and straight as that he said his complaint alleges quote that the submission of false claims was truly a corporate effort and the individuals involved in the fraud are irrelevant close quote that's what he said below of course he had to say that because he has no individuals and he specifically concedes that the folks filling out the forms likely had no idea as he posits that they were from china but essay i see this court expressly said as clearly as could be said that a theory of collective knowledge is quote inconsistent with the act of language structure and purpose this is a fraud statute and it requires an individual to allege that some individual was simultaneously aware or recklessly unaware of the true facts and the false claim about the facts he specifically says he has no such individual he can't make such an allegation he can't complain should be dismissed on that ground if the court needs to reach it his second argument and i don't i confess i don't understand it but but he argues somehow that because this is a customs case the standard of reckless disregard doesn't apply that instead a negligence standard on of the custom statutes should govern but s a i c said clearly that in this province statute negligence is not enough at six twenty six after twelve seventy four there has to be deliberate avoidance or aggravated gross negligence so he's arguing for us negligence standard because he's got no possible shot at that when he's conceded that his whole scienter case based on what pencils look like goes nowhere because the pencils look like take one minute if you would like it your honor if you believe that there has been a public disclosure of which i think you should read these very carefully again and you'll see that there has not then but if you do believes that you should consider that the relator is the original source of that information well we didn't make the argument below and the court the court itself addressed the issue in considered information in the record there is sufficient information in the record to conclude that he is a originals and the original source that is because of the information that is in the complaint it also has acted in this declaration which he said that he's been in the industry for decades they kno