that word congress simple case with a simple reason that the lower course entire ruling and analysis relevance of the dismissal of the security check outs was a single statement devoid of citation and support if that statement was correct but palin's loose absence an opportunity to amend if in error the lower court should be reversed and claimed his should have their day in court the lower court held in one statement at page one sixty six of the record lines thirteen through sixteen that's the following the court rules that plaintiff's allegations sound in fraud period no citation plaintiffs are not claiming here that defendants merely made errors in registration statements and prospectuses semi colon rather these claims alleged fraud on the part of defendant's fraud committed to benefit does not exist we were this complaint was carefully constructed by the plaintiffs in the post back we knew back before we pled the complaint we don't run away from that in any way we believe the standard here today has been slightly changed under vest and expanded and the jurisprudence has developed but when we played this complaint we knew that we need to make sure that our securities act claims were not infected by the fraud of the ten b i mean given just the common sense of given the state of the law in this circuits and in the country for that matter certainly we had a much better chance at the end of the day of taking the securities case forward and we're more likely that that would be the end result and so we want to make limited instances if any where there is fraudulent of burma's of fraud that are made and then in the section eleven claims are first choice will be depending on the instruction from this court would be the ten the ten we cases on it doesn't exist and the way that we played it we were very careful if you look at the counts in our complaint we don't just include as every single other case that has whatever reason including the alternative the long happened these loans were not the slips well the district court's already determined that there was no duty of disclosure with respect to the walker lands so that's a and obtain further information that we had discussed we have taken statements from certain witnesses and that that would add to the detail that we could flesh out with respect to satisfy a ninety standard i don't believe to satisfy a ninety standard is required with respect to the section eleven but certainly we've had we have taken witness statements we have facts that would go in underline at least an attempt to doing ninety nine b but it is you know our analysis and going through this that if one does not there is not one single allegation in the complaint that is common to both this exchange act claims and the securit es act claims that are suspect that seems to have gotten lost to the lower court certainly it was lost on the appellate we could not have made these any more separate than if we filed two separate complaints and the only reason that we didn't file to stop the complaints of the consolidation order of the judge in august two thousand and one said do it is one complaint otherwise certainly we would have done this is two different complaints i don't think it's we should bear an additional burden because we weren't able to put this in one complaint to touch on the point that you made with respect i think it would be helpful to just step back from the way we built the complaint the way we track to the complaint plaintiff strath of this complaint starting with the loan starting with you martyr starting with the securities act claims and then after that the exchange that claims were added in distinct parts there was not one paragraph that overlaps we were very distinct in parts and it is the exchange act claims that attribute motive not necessarily to specifically what was disclosure of these loans and the admission of that disclosure this is this case is not terribly dissimilar from any other securities kept under the p s l or i mean the fact is there is never been a holding by court that has said that if the plaintiffs have not been able to look at the situation to look at what we've pled to look at what we've brought before the court and come up with something that we could do differently except we're not pleading the fraud at all and if given an opportunity to amend as we believe we should have that's exactly what we would do we would we would do what that says that we could do and that is this complaint is not grounded in fraud we were we've played it carefully that it is not there maybe all the way have not seen any and have not been brought it will be helpful instead of myself categorizing or commenting on it's just state exactly what happened may tenth two thousand and one was the record reflects the first complaint was filed it was a  a case many complaints from different plaintiffs from different law firms came there after on september tenth two thousand and one there was the argument from lead counsel the following day we counsel was granted in the aftermath of september eleventh in which several of the law firms involved are from new york i personally had to drive back from seattle to new york at the time there was some confusion with respect to how much time we have except september twenty sixth was an important date because the statute of limitations ran out certain defendants on september thirtieth we sent a letter and  a complaint to the court that was identical in all respects except for adding parties that were left out of the initial complaint that was filed to the court saying look we don't there we don't prejudice ourselves this is not our first many complaints under the consolidation order this is merely to make sure that there is no ambiguity with respect to the statue of limitations there are no material differences in that complaint except to add the parties that the statute limitations arguably would have ran out on september thirtieth it was not necessarily the preferred way to do this but given the time constraints and the historical constructions of the moment it was impossible for us to complete the first amended complaint by september thirtieth ultimately there was one amended complaint that was presented to the court there was only one amended complaint that was ever served and that was the one filed on november thirteenth two thousand and one consistent with the rules of the district court of washington consistent with the judge's order that  let me start with focusing on mr cameron answer to the course direct question how an amendment would be posed if an amendment were allowed in essence what mr kember said at this panel was he would not add anything he would take things away one must look at the totality of complaint as planted there are will have an obligations here one can't just willy nilly throat words on a page and give it to the court and expect the court to make amends for counsel's missteps later one has to think out what a complaint is the plaintiffs have made an effort to plead the actions which are based in fraud and actions which are not based on fraud what causes of action but activities very important distinction here it's not a matter of pleading a negligence cause of action fraud cause of action it's let's use the example that is popped right out of that's look at page but when you get a chance look at page eleven of six of that's what you'll see in analyzing  giving because there are some things your honor that you just can't do none deliberately you cannot set out to and invent an entire company reported compensation scheme and four hundred or four point five million dollars and do it negligently it just doesn't happen there or there might be a conceivable case that it's not this case there might be a conceivable face in which i could meet your paradigm it isn't this case there are only two activities that are alleged with respect to section eleven one is the disaster total disaster and that they shouldn't go forward what they actually say is received to due diligence reports a future which recommended against  this goes to what this appeal really ought to be about today on the merits of the claims judge last night was able to evaluate the complaint and find that there was no material misstatement alleged under section eleven remember only two cla under section eleven there was two activities one is that purported compensation scheme all built on a tiny foundation of a purported two hundred forty thousand dollars undisclosed loan that is the entire foundation of the loan claim and that foundation has been destroyed by plaintiff's own admission at oral argument below when they conceded that the long was actually below sixty thousand which is the f c c disclosure limit and just last night found as a matter of law our there was no obligation to make any judge last night makes that page one sixty seven of the e r he addresses both of those points if it would help the court i have a i have that page and what kind of approach would it be alright i don't like me if you don't want me to i want but you can leave it warnings defensive armor used by issuers to warn the public that life may not be as rosy as the investors would like it to be there is no case the plaintiffs have cited which has ever been able to predicate a misrepresentation on a wrist warning think about that but you have something that is the foundation for the bespeaks caution doctrine and the p s l are a safe harbor full page of disclosure saying warnings you barter may not work your barter may not work and pl somehow that was misleading because it didn't disclose predictions of how your partner would do two problems with that as a matter of law and verify on and lyondell this court has already held you know in both of those cases and other cases there is no duty to disclose at all predictions of the future and so network congress didn't it didn't warn the public that your bottom might not go as some people would hope it would go it didn't predict the future and so on a su below we've cited to you on the record today this court has a complete record to affirm judge last night on the substance of level that there is no feasible claim here so when i get to the issue of dismissal with prejudice there are claim and the compensation plan under pathogenesis understatement we have here an example of amendment being futile plaintiffs of conceding today they're not going to anything they're only going to take things away that leaves them with the unless  leave to amend the substance of the claims isn't there it's been found by just last night and this circuit has held that where if substantive rulings have been made and there are substantive rulings here and haven't been challenged on appeal those are the parity the second grounds for his decision you every opportunity to go back to just last week and say we have new information but it wouldn't have mattered anyway the first plane disappeared ceded to you today they don't have new information they do not have any new information they say they don't have new information why aren't they information we'd like to amend our complaint we would have been hard pressed as opposed to say no if they had new information that they discovered shortly after the dismissal but in light of today's admission that they have no new information and what they would try to do is just dismiss or unring the bell and take matters which can't be alleged as negligence if you can't negligently failed to disclose an entire scheme to fleece your investors in a product there's nothing and as to you barter whether saying that we buried reports we didn't just negligently fail to disclose things we bury them and in any event the purported right to have some disclosure comes out of predictions of future events which is barred by  informs the court's judgment as to why the dismissal here should be with prejudice under the futility doctrine laid out in second versus heart growing and laid out in the pathogenesis lipton versus pathogenesis case they'll turn it around the court has here is simply the failure to plead fraud to specificity and a ru nine b we do think that this is really a stack ace not a best case if it's looked at as the best case and once you strip out any allegations of fraud you're left with nothing for rule for section eleven claim because every claim they allege under yes robert thank you very much any of the securities that clive's the fact is we are allowed to plead in the alternative we do not have to make an election of remedies we don't opine i would have a rule eleven the plaintiffs would have a rule that an issue if the securities that claims ascribed a particular motive as to why these things happened but they were carefully constructed and we were careful never to state why it is merely it is that they are false and misleading and the narn ninety pleading standard we have satisfied the judge's ruling with respect to the compensation scheme of what are the reasons we appealed the securities is rulings with respect to the securit as we read that they don't speak to the issue in one way or another about the disclosure requirements he discusses disclosure in the context of nine b and in the context of the exchange that cl four point five million it is a question of mixed question of law in fact regarding whether or not that is material it was false it was an omission the question is whether or not with respect to section a lot the question about whether or not it was material and if nine b does not apply then the question goes back in cannot be decided on the face of the complaint itself with respect to you barter we never conceded that we could not and would not add more if that was the direction of the scores but under vast it is clear to us that we should be able to strip away the allegations of fraud and that is how we can and we should solve our ninety problem because what is it that you want the court to do here you would like the court to do is to send us back to the lower court with the opportunity to amend for the securities that claims that rule that the district court dismissed the securities act claims a nine b and a nothing else which i think is a fair reading of the two paragraphs that you wrote there had spoken to witnesses and had the szell information it is my hope and my belief that pursuant to the us this court if this court gives us the opportunity to amend they will instruct us to do so pursuant to the second part of the us and that is that our claims are not grounded in fraud mr cameron i've heard you say two different things here just a minute ago just before i had asked the question about what you wanted to do and you told us that you'd like us to remain and with the opportunity to a man i heard you talk about stripping out if we were not inclined to give you another opportunity to a man what would you like this do to strip away many women react as it was i'm sorry i read it as being whether we did the removal of the stripping or whether the court did certainly if you strip away the ten b certainly it would accomplish what we seek here to direct the district court to strip out all of the to all the various fraud i think that given the amount of time that has passed since we were before the lower court certainly the able to plead this that's would be would be an opportunity that we would take advantage of you know we would be able to do successfully that's gives us a great deal of instruction of how we should play this i have no doubt that we could go back and plead a successful securit claim under the guidance of the best and that is the opportunity i would hope this court we give us is not futile and we should have that opportunity and give the other any further questions the question