what's extraordinary about this case is the haste with which the district court disposed of the district court order disposing this case is fairly understood to be a disposition pursuant to rule fifty six because it considers factual matters beyond the pleading indeed it considered factual matters that are nowhere in the record i think the district court did this only of approximately four months after the case and then removed from state court it did at the inception of the case before there was any discovery indeed before there had even been rule twenty six disclosures and this record did so without addressing the plaintiff's request underworld thirty six f or the district court was not incorrect all respects by any means for example the following observation by the district court found it to page three sixty seven of the record is right on the market district court said this is not a run of the mill case of poor financial performance his entire investment four million dollars within an extremely abbreviated amount of time there was another aspect of ask you to address that question i'm particularly interested in the district court of the disclosure or the materiality of the statement is so obvious that reasonable minds could not differ are those issues appropriately resolved as a matter of law and that's what this court said  to the point i think is the supreme court opinion in virginia bank shares in that case involved a different set of facts that had to do with in any way here's what the court said a cautionary you handicapped in arguing those cases by the fact that you're not relying on any statements that were false or misleading your contention is that they didn't go far enough that there were other him that he spent his money to purchase before actually receiving the the other documents the the reason that language by the way the reason that language is included has nothing to do with it not being a legally operative document for the purposes of a fraud claim or a claim under the one nine hundred thirty four exchange act for securities fraud under rule five zero one and reg d which we cited something like page twenty three or twenty three of our reply brief we point out that what  that disclaimer does is that it is part of ensuring that the whole process does not either violate state blue sky laws or second me so i confided in my notes here confine the effect of the exclusion it's a safe harbor what it is to simply saying this is not a violation of the thirty three act that would otherwise require this offering to be registered and it's not a violation of california skylar's the practical point of holding that because the document says that no one can reasonably rely on it is that  nice and every offer of this kind of offering and they are invariably beginning with a sales guy commit such as the presentation it cultivates the interest of the investor and they typically follow with an offer memorandum or placement memorandum that literally is delivered of on the day of closing and there are plenty of cases that talk about what difference does it make if the investor rather didn't read the final documents in the answer is and you can well see how if those were included you could pick out two others that were also time clued and cases like convergent technology seem to say what you don't have to include everything that the company may have thought of why is it that these if they decided it was important enough to sell these notes just put in returns reflecting what happens at a different the fault wait why did they stop at six percent and the answer is because you won't sell this stuff if you actually want it out to ten percent and show that you lose everything scuse me you lose everything when it goes out to ten percent i didn't make this up i didn't do the presentation my include that table the further out because you look at it and you're going to see oh my god well i won't make any money to speak of somewhere between two and a half and ten percent it will be my return at a default rate of six rule that they don't matter immunize is people who use these kind of documents which as i explained are have that disclaimers that offer for sale and so forth look at the other documents because it course your opportunity to correct me if i have but isn't doesn't mr sitrick represent himself as a skilled experienced investor doesn't he the record representing this one assisted out in the end in the table that he's going to be worse off or worse off isn't the question your i that's my point the question is how much worse off and that was where i was literally going if it goes from talking about the subscription agreement that that was i place to the question to be about the subscription agreement where he supposedly sophisticated investor that to is relevant only to the question of whether the offering needed to be registered under would say is these investment vehicles are so complicated that it requires someone with the skills of an investment banker and someone with the computer program typically a proprietary computer program to to calculate exactly what they calculated and the kinds of things they depicted in the table i keep citing to you and all they had to do was say by the way with respect to one other item under what circumstances might you lose all your money and if reasonable minds cannot differ as to whether it would be relevant to tell an investor about then identified circumstances under which he or she could his attorney and then addressing that issue in particular it goes to the issue of reliance that is necessary for the cause of action that mr scituate has alleged and if we take for example mr rosen a cting as mr citrix agent mr sitrick has not provided the court with any case law that supports the position that credential equity group can be held liable for the instance where the principle of prevention would have known and that mr rosen was acting as an agent in this case we did not know that and it was never disclosed to us or that prudential acted in a manner where ian prudential disseminated information to mr rosen with the expectation that mr rosen would have provided it to mr cetera those are the cases that were suggested to provide mr sitrick with the with the shield  reasonable under any circumstances and so as a matter of law the court could conclude that mr sitrick does not have reasonable reliance or justifiable reliance on what you have especially really a set and best ter someone else and there are cases especially in connection with with translation issues that he has to rely on his agent right and therefore if the a instructs us that forecasts cannot possibly be actionable and that's exactly what they're requesting us to do is to say well maybe if this happens a worry if if if the market goes down list amount then that's going to happen brokerage firms private placement huysman agents don't put those things in there for two reasons one it's impossible to decide what scenarios could possibly occur with this portfolio and second it might give reassurances to investors that aren't possible for example if we say that history's going to repeat itself a documents we may be telling them that the default rate for the next five years is going to be zero and therefore you're going to make a living or nineteen percent that would be equally as difficult for an investor to be able to rely upon as what they're suggesting that we say that the market's going to go down the investors in these investments are held to know that the markets go up and the markets go down in either way will affect their investments ira sure that is tr the investment advisor in every one of those types of cases in the cases where they say that there was an oral represent oral representation would be similar presentation in that you know all of the lines of cases of oral representation so the court tell the reasonable investors that they must look at the final offering documents that he is knowledgeable in this type of an investment he has done before and indeed is willing to accept the risks in all of those circumstances as they are when we look at the offering however when we look at the different cases that talk about reasonable investors many of them give and the brown versus your present case is a perfect example as well as the fucking or versus beer case they  investors being unsophisticated and despite that fact they are held to be reading in the final perspectives and so if a court can conclude as a matter of law that investors in the open marketplace and in this  that was supposed to be in the brown vs unified in case a limited partnership that was supposed to give them income in safety and security the court found that they were unsophisticated investors yet required held to read the prospectus then one can conclude that if anyone is going to purchase cvo two they must be an accredited investor then what we are dealing with here today is a pool of accredited investors because an unsophisticated investor such as a brown his would not be allowed to buy steve you too and for that reason i think as a matter of law it is fair to say that these investors because they had to comply with  e one must be accredited investors and that basis these accredited investors who make the affirmative representation to prevention that they know and understand the risks are held to a standard of appreciating the risks that prevention has put in the offering documents and there are they there are numerous as judge wilson points out in his order and as we put in all of our documentation the offering memor choose they choose high yield debt securities in the hopes that they're going to be able to provide the investors with a tremendous return rate of return and that eighty trochee is going to be able to be paid their interest and their principal the manager of that pool f m any leverage is that pool of bonds in hopes to increase the rate of return on the portfolio however because of the marketplace in two thousand in two thousand and one in two thousand and two many of those bonds because they were high yield bonds they were secured by other obligations of those you sure and the market place all of these are the disclosures that we've put in the o m and the p p m defaulted so therefore the bonds didn't have the value that they may have had when they were put into the portfolio  can't sell the bonds because the market has just fallen apart we saw that with the technology sector in march of two thousand if they are able to sell some of the bonds then it's possible that they can go back into the marketplace and market fell apart and because the technology market fell apart f e m a was not able to replace the portfolio with sufficient bonds that were giving it a high enough yield to pay off the a b c etc those other that fourth in the documents easy being the under rated and the lower strive was number one in hopes of getting the highest rate of return after everybody else was paid off was left with no collateral l in order to meet payouts to the other classes of the bonds and therefore the investment failed but these were all the type remain especially for the rated me the class they were indicated that there was no recourse if the if they couldn't pay the other bob holders with the collateral in the portfolio there was no recourse for anybody else to pay the subsequent note holders the liquidity factor was also discussed in great detail the problems of the specific sectors of the  industries that were in the portfolio are discussed in those disclosure documents so that an investor that looked at the offering memoranda would know and appreciate all the various risks that were inherent in the market worked in their favor they would be the ones that would benefit the most but they carry the biggest risk as well and those are the things that we did disclose which makes the omissions that m material because in the totality of the mix of everything that was disclosed in those offering documents the two items that he didn't have that he wanted in the in the next were were not relevant as compared to all sitrick cannot go back and try to add it are offering memoranda that we made in september of one thousand nine hundred nine in an effort to win his case it's just not right and it's not fair mr  trick has not been able to show that these two alleged omissions were indeed material when you look at the totality of the mix of the information and no discovery no discovery is going to change that what was  that well first of all are two problems with one of the cases to which counsel referred are cases only in which the person wasn't in ages