start off by saying i hope everybody is safe and healthy during these trying times may please the court once again my name is tamara weiner is on behalf of plaintiff in this matter in denying plaintiff's motion for relief from judgment to file an amended complaint on behalf of investors and kimberly clark and adding those for me how you learned that district court erred by ignoring newly added allegations concerning a jury verdict in a fraudulent concealment case on behalf of health care providers where as here the planes of class alleged that the corporate defendant intentionally issued publicly misleading statements regarding their micro cool surgical gowns and this was the bahama surgery center l l c versus kimberly clark and how your case in the central district of california in that case the bahamas action jury found on the fraudulent concealment claim by clear and convincing evidence in other words a higher standard that applies here that the corporate defendants kimberly clark and how you intentionally misled with fans are intentionally misled health care providers by representing their micro post surgical gallons as high performance am i level four gallons that designation means should have meant anyway that the gallons provided health care workers with the highest level of protection against contracting communicable diseases like hiv bola they made their statements in fact when the bowl of pandemic was at a fever pitch even though they knew at the time that the gallons in fact suffered critical defects particularly with the seams of the gallons which allowed for leakage in strikethrough of highly contagious fluid that is the precise misconduct underlying the claim in this securities class action judge lynch's opinion and as you see vs grado is directly on point and there are and i'll quote judge lynch as saying findings of defendants intent and knowledge pertaining to a fraudulent concealment claim in another action based on the same set of alleged facts more than satisfy the elements of the federal anti fraud provisions invoked here so much denying claims of motion in this case the district court erred by failing to even acknowledge the fraudulent concealment verdict at all it is me you have one more minute thank you in fact a district court only analyzed a completely separate claim in the bahamas action which was an equitable claim for unfair business practices but did not analyze the jury verdict on the fraudulent concealment claim at all but putting the jury verdict aside there were additional allegations added to the proposed nd amended complaint that also would have cured any perceived deficiencies in the elements of corporate see  and those involved the sworn testimony of senior management from both companies in the bahamas action and in the action here demonstrating those senior management knowledge of the micro cool failures to satisfy the am i level four criteria for surgical gowns during the class period the knowledge of those senior management employees is there is properly imputed to the corporate defendants and i'll quote judge cal agrees opinion of the nd circuit ruling at lorelai financing jersey number three versus wells fargo where court found that plans that had adequately alleged corporate c answer as to was will be a based on the cns or of a managing director so this was a management level employee who was also not a name defendant who had their wrecked knowledge of the fraud just like here the management level employees in the bahamas action testified to their own knowledge of the fraud which is properly imputed to both corporate defendants there's also the marsh and mclennan case which quote from there as well that states while there is no simple formula for how senior an employee must be in order to serve as a proxy for corporates the answer courts have readily attributed the c s r of management level employees to corporate defendants the court the district court here even acknowledged when it dismissed the st amended complaint that the st amended complaint which didn't even have the sworn testimony allegations yet that the st amended complaint had already attested to the alleged knowledge of senior management but in addition to the jury verdict and in addition to the sworn testimony of management level employees we also have admissions here we have the corporate defendant answer and the bahamas action in their answer to the bahamas action complaint the complete the corporate defend receiving testing results from independent lab testing that showed that the downs did not consistently provide a m i level for protection meaning they allowed liquid and bacterial and viral pathogens to penetrate the gallons and also there is the admission of the chief operating officer of halliburton this allegation was in fact contained in the st amended complaint who admitted to having seen a powerpoint presentation an internal powerpoint presentation in two thousand and fourteen in the middle of the class period court's decision only as to the corporations and are not relying on individual defendants santer in order to argue corporate c enter here in the allegations that were added to propose an amended complaint included the jury verdict in the bahamas action the fraudulent concealment claim i understand but then if you are doing corporate see enter directly you have to have statements which are dramatic in look we have said and what ever the law of california is about other things it's hard for me to see that the particular statements about this being a good mark other statement that your honor mentioned but the statements included statements that these gallons provided highest a a m i level for protection to health care providers during a time when that was particularly relevant because the bowl of pandemic w a fever pitch these were very serious claims that they were making even though they knew at the time as the jury verdict down in the bahamas action that the gallons did not have that consistent level of protection because they suffered this critical defect would negative came in and the st the said tests were by a competitor which again should saying something but in terms of the level of dramatic is funded a little bit hard to and when one knew it was wrong we're out of my own home the statements that were alleging were made throughout the class period and we're also alleging that the defendants knew throughout the class period that these critical defects were in the gallons and gallons weren't tested a single time by a competitor the were tested monthly and these tests consistently showed based on sworn testimony of management level employees in the bahamas action as well as certain of the c w s that we cite in our st amended and in the proposed nd amended complaint that the company knew throughout the entirety of the class period that multiple lots of these counts not just one and it wasn't pre clearance period during the class period failed to meet b m i level fo standard consistently and that was even though the company continued on labeling and marketing materials can pandemic preparedness materials consistently represented that the gals achieve that level consistently to me that when you asked to command you relied on certain facts that you're talking about now what it really was a different view you could change it seems that you were at the time you were seeking to amend the complaint you were still very focused on the in individual defendants as the basis for your it seems on the peel you have moved away from that towards sort of a direct quote the theory based on the bahamas action but did you when it issued its decision below because we made the decision to only appeal as to the corporate defendants the argument had to necessarily and logically shift to focus solely on the corporation and not on those individuals but the entirety of the theory of corporate standard that is put before this court is based on arguments and facts that were before the court below so you're saying that the laws of the waiver even bolder was true and even  but you're saying that that was enough to keep it from being away for free yes your honor i mean even if the nd circuit determined in united states versus griffiths the party need only have made some argument to preserve an issue for appeal it doesn't have to be a mirror image of what was argued below in order to preserve the issue and once again the plaintiff did not bring a new theory to the case here the plaintiffs necessarily focus the argument simply determined in the lorelai decision and as judge calories the apple established stated their quote without the benefit of a ruling many of plaintiffs will not see the necessity of and that meant or be in a position to weigh the practicality and possible means of curing specific deficiencies we felt that six for that request and the nd circuit has ruled that it is appropriate to use rule sixty six to request relief from judgment when requesting permission to amend a complaint and in fact there is a very latest in the nd circuit this is the different it was whether somebody asked to a man when the district court had not yet decided certain things and then they decided and they put it's got nothing to do with this situation you the nd circuit in indiana public retirement system versus s a i c and in the previously mentioned gropers the simon case are clear that rule sixty is an appropriate ground under which to grant relief from judgment when a party is requesting a at that point in time so at that point in time we didn't make a determination that it was necessary to bring the action before the court once the motion to dismiss had been determined and the district court made clear its view on this issue is merely shifted the focus of the motion to women's clippers the answer argument that is this court has explained in cases such as iconix and nortel if there is no development with the argument raised on appeal the new argument has been  solely on this court decision and ford the court should exercise discretion to decide the corpus the answer issue that case there's no resemblance to this one and for the court consider to wait legal argument because it concerns an issue already considered at some because the plaintiff never raised a pillow in contrast afford the district court here hardly consider corporate generous someone and indeed the district court did not consider plaintiffs new corporate central argument at all even if there was no wa the argument the plaintiff made in the district court was that it was remedying the facts in its original complaint which were that there was no no pleading of individual defendants the enter and so district court as knowledge fail to mention guy next at all for good reason plaintiff can't make the required showing kimberly clark statements are the antithesis of dramatic illustrations of corporate deception like in that g m hypothetical rather brief alternative ground section shows these statements don't even support a claim a fall today under saying versus cigna progeny on science or if three points st is noted plan failed to identify anything is dramatically important to specify investors or dramatically faults in the g m hypo only one of two clark statements is even directed at investors and the statements don't mention the micro takedowns emphasize that the gas continued to meet any level for standards or otherwise shows  the company knew its generic comments about protective equipment were false and the statements are nowhere alleged to be what grounded the jury verdict in california indeed that case was and ms weinreb said earlier today was about statements plaintiff has effectively had discovery they have the whole bahamas trial record finally there are many inferences contrary a science in the same things that plaintiff is pleading about high ranking officials purportedly knowing about compliance issues if you look at a forty four paragraph forty two and what that allegation is quoting eighty to twenty a meeting that ms bauer attended in december tw years and moreover the witness testified that bauer was visibly irate and gave us direct marching orders that this is been a nightmare for ten years i want this fixed that lines up with cases like  the labs there are ovations ambiguities and every turn that counts against inferring science or the witnesses are connected to the statements the witnesses are connected to approval of the statements and  here that simply false we allege in our complaints and that includes the proposed nd amended complaint and the previous complaints that defendants misstatements included statements on product labeling statements and marketing materials statements on the website all of which were publicly available and all of which were included in the bahamas action so that's just simply false the defense counsel also mentioned the guy next case so i will reference that as well that case actually held in our favor that you do not need to plead cmdr ass to a quote expressly named officer in order to plead the answer that with a completely different case also then and here and there there was no is the answer because the plaintiffs hadn't identified documents to which they claim  had assets they had argued defendants failed to review information they had a duty to monitor but didn't identify those reports here allegations if the answer are far stronger we have a jury verdict based on the exact same misconduct where the court found by clearing can but where the jury found by clear and convincing evidence that the same corporate defendants issued the same misleading statements as alleged here with the enter and they base that ruling on the sworn testimony that is also now included in the proposed nd amended complaint counsel mentioned that testimony including the testimony of ms that hour was not about micro pull that's also false the testimony was given in the bahamas action the subject of the bahamas action was the micro pull down and statements that were misleading by about the micro cool down the subject of her testimony including the compliance failures clearly also implicated and predominantly focused on the micro cooldown permissible as long as additional findings of fact are not required all the facts upon which this appeal is based were present in the record below and were part of the newly added allegations the proposed nd amended complaint for which the pla which are relevant here the motion sought leave to file a proposed nd amended complaint which has newly added allegations upon which this cmdr argument is currently based i do have one question  on the testimony of high level employees management level employees which was added to the proposed nd amended complaint which was before the court as well as the jury verdict in the bahamas action both of those things are reasons why we say the district court erred in it decision but the idea of corporate answer and the concept of corporate cmdr was raised below and yes hello  your last thought ok but the point that i was making simply was that our argument to the to this in this appeal is that the district court made a mistake in not considering arguments that were before it which includes the additional allegations regarding the sworn testimony of management level employees and the bahamas action jury verdict upon which which based its ruling upon that sworn testimony that your court didn't consider any of that which is why it's not present in the opinion below and which is what we are appealing today all right ok thank you we will reserve decision but thank you all well now to the next case