assertion is that that was basically unlawful but didn't you agree with the court at the time that that was appropriate step and that something had to be done to bring some order to  relevant to the decision of the motion to dismiss but well let me let me actually i'm looking at ph two forty four i think it is of the appendix your colleague i 'm assuming mr at was response or statement by the court court's it's very difficult for people my position to sort through all these are allegations so i think the part that particularly the question of whether a cookie particular stain was false or forward looking i look way and the court has inquiries whereas our christian patients need to be organized in some way in other words i'm trying to find where you said to the to the district court wait a second this is unfair to us we have six other we have five additional things for you to look out and you really do need to look at these five additional things can you point me to where you said that with this record i did i can understand your question i don't have a side in the record to the transcript about if you look at the writer who submitted i think you'll see in the judge as i remember the hearing expressed some frustration with us because he said i asked you for five statements and you tried to sneak in are these other things that related to other statements that weren't included in those five so there was an initial resistance to this i also think that it probably for purposes of analysis needs to be bifurcated into two pieces one is he asked us for five statements and we provided him with five statements and some of the nine of your five additional statements you think you should have looked at but didn't i look carefully at what he did and so for example you say the june twelfth see that in relation to the words he's in the merger agreement he addressed make tribute to you three arguments with respect to the assertion that the company or one of its leaders had exclusive possession access c c d's system and based he addresses that argument you make and says i don't think that has anything to do with this because the statement is directed at real property so it looks like he he is effectively addressing your question about internal controls am i wrong about that he she did say those things and i think those statements that the facts that you were just recited in his mind at least bear upon the question complaint that you put first and center in your briefing which is we were treated unfairly by the district court we wanted him to address things and he refused to do it i look at the very first thing on your list that you say he did the dress and it looks to me like he did address that and i'm trying to get you to considering that he considered whether or not there was control and how that related to the company's internal controls specifically the financial conference calls recording but you say he didn't address right as i read as i read his opinion he did not address a question of what cooper's internal controls were as of june twelfth so he should have done more he should have done more yes but can i do to address the question of exclusive possession because that's it doesn't relate very closely to the question internal controls but they are different and i think one of the things that we look at you do want to give cooper did not have exclusive possession of c c t v or the date of the merger which i guess was twelve because we it's and i don't think it's a question of evidence but if you look at the cases we cite and you look at the standard for this to look at these facts in context we know that that an alleged that they were dispossessed previously of their access to to the facility we also people took over a portion of federal land yesterday would not leave they were there for weeks and ultimately they are they have left they're gone the government now w es to sell that property ok because the government somehow committing a some sort of ten b five problem if it said that they don't have exclusive possession of that property i think property and say that if they say that they had exclusive possession of this federal property in or going to jail selling it we know that somebody had been on it for weeks can the government  say correctly that they dealt today have exclusive possession i don't think so i don't think so i don't think so because they're not they're not good who does who has possession besides the government today i think they if they are if they were up for the next case but it could be it could be the government it could be my house but the point of the bit if if you have exclusive possession today and you are representing that you have exclusive possession today how can it possibly be a violation of securities law because somebody had passed happened to have been on your property and claimed that they were entitled to possession or they were objecting that you possession and you well i think in the context of these particular facts when the person who's running that facility is telling them he doesn't want them to sell it and that he wants and he's in the course of engaging with a consortium to try to buy himself and his sources and the source of that year you know was three confidential informants there was three confidential informants there is a course negotiation that led up to  but those were best before the murdering and the district court said the statement that you're complaining about is a statement about real property yes it's not a statement about financial controls and systems and so  required to plead a level of detail or evidence that only the defendants would have right now so i you know i can give you the detail that we have in our company we think it's well put obviously but you can't be held to a summary judgment or trial standard at the please the court my name is jeffrey let's i'm here on behalf of the defendants up the ways i'm joined today by my colleague steve norman and marjorie thank you to start off with the district court dealt with some of the statements that were three page opinion instead of a fifteen page opinion would have made any difference would be here in exactly the same place today and because of the saying it's immaterial whether a court considers all of the really matter how the district court that's not exactly what i'm saying but i am saying your honor that the review as we are here today is a plenary review this court of course can look and see that there are multiple reasons why  sure there are lots of allegations in the complaint about things that happened later about later also the access to that property those do not show however that there was not possession of real estate on june twelfth that's fraud by hindsight there's no allegation that there was any defect of title on june twelfth there's no obligation if somebody adversely possessed the property on june twelfth the plaintiffs really they put all their chips on an allegation made in the chance a period of time there was withheld from you certain business and financial information and yet when you go down the street needed to strike with a plan a slowdown are expected to have an effect doesn't mention anything pertaining to the law so for the actual access to financial data and if you're reading this as a member of the public so it's like everything that went before that in the beginning of the paragraph should be taken into account which would include the loss of access to financial data though you could argue that no we've been safe but as a bet it's being cute but that's the problem i mean there are green things were done in such a way that you're trying to give the public this is going to happen it's going to happen and you get every day it was because more and more clear this merger was likely not going to happen well your respect for that was not cooper's opinion as sign off close quote he was told expressly we don't have control we can't get financing mation there's no way we're going to be able to go to closing my i mean that's that's you know allegedly in arms is three days before the goes out so i understand your legal position to be that even though this senior corporate officer knew or was at least being told we can't do this it was ok it's safe allows us to say if they come forward they've got evidence that they put forth that arms is on notice before he puts that out that that's meaningful that has to be in the mix about and determine whether this is a true or false statement remember your honor the complaint expressly admits at some points that cooper interpreted the merger agreement and particularly the definition of material adverse effect that provision there to at ok help me with the how was it true how was it not a problem for your client to have received but through a senior officer a statement saying we can't close the deal because we can't get financial information and three days later send out a proxy did and we pointed out it on appeal be that the plaintiff had no response to that at all never applied but if there is not a single factual allegation in the federal complaint to substantiate that the cooper was somehow unreasonable in understanding the motor contract or the way that it made the case if they couldn't walk away from it but does that mean that you honestly believe that you are going to have a closing with no financial data on the same level of have the financial data let me go for the required information point here  and its up to date projection that was all that was required and that's a segue to why decide this a motion to dismiss why not allow at least additional information to be gathered through discovery that date but the complaint alleges is that apollo patients insinuated but that topic could come up later depending on how for the negotiations with the steelworkers union might go the complaint doesn't always that there was actually a  all until september twenty fifth and twenty eight so the claim as to the september night doesn't work after the september thirtieth eight k there was no duty for cooper to  was no affirmative statement in the september thirtieth a case that was rendered misleading by that omission and the only statement in that a case that the complaint challenges is the statement that the merger would be a good that it was a compelling transaction that would create a leader to grow a little tired industry with a global with a global footprint the fact that apollo had asked for a price cut had nothing to do with whether the combined company would be a leader in the tire industry or what it footprint would be the eight k did not say one single word about the price terms of the deal or any other terms of the deal mr arms used the word compelling to describe the strategic rationale for the deal compelling transaction that would create a leader in the in the tire industry again that doesn't speak to the price or deal terms at all and go under in a fighter case a just a couple years ago described the word spectacular as being a classic instance of puffery and then i would suggest the compelling is very similar here the plaintiffs of not alleged any other basis for a duty to disclose in the september thirtieth a k about the request for the and she's looking very specifically at what the facts were as of october fourteenth and whether or not cooper could have required the power to close as of that date he's not looking at what the defendant on snow on june twelfth what was his questions that are in this case about disclosure under the securities laws and when i listen to him talking when we go through this process right here is a significant and consistent drumbeat of formal for substance we don't have to disclose the party scene is changing because they didn't through and come thousands of pages and say you should have said that better and hope people into court and we don't want that to happen any more so if you want to do it you better have come in with some pretty good guns that is that's the congressional read on this why shouldn't they be taken advantage of the get the data out of there was a subsequent discussion about the auditors they needed to get a comfort letter and despite mr rich's characterization to complain in this idea about the nature of the mac clause the required information is discussed in a complaint paragraph or fifty five nation from asia including auditors comfort letter with a footnote in our complaint describing what a comfort letter is saying that they needed to do it if they didn't do it they couldn't  pastor and and i don't understand what the competing presumption is the competing inference would need to be drawn from the c f o receiving messages from people within his own organization and they couldn't do something they needed to do to close the deal and then say it we