and i know it's a little unusual to do this but if the court will indulge me i'd like to just take a step back for a moment and just give a little bit of background on the state of the law here because it's been a while since we've breached these cases and a lot has happened in the intervening time that i think is relevant to understanding how we should approach the specific allegations in this case so employee stock option plans are sort of an unusual creature they're subject to two somewhat overlapping regulatory regimes because they contain securities company stock they're subject to the securities laws and you know you can sue under the securities laws based so they shouldn't be treated in respect differently and the duties that the studios have shouldn't be different than it would be for mutual fund or any number of other you know real estate investment trust or any other number of and fund aesop and we're not claiming that they should have diversified the aesop what we're claiming is that they should have taken action to make sure that aesop remained a prudent investment but the way to do that but the council again joining my colleague i mean the reality is we're talking about how didn't offer here and whether or not the trustee in this case should have revealed something that may or may not have met reporting requirements were confusing i one reasonable could have been or are you say the name not to reveal the x party communications since the regulations themselves were confusing the regulations themselves may be minimally confusing but they were still known to edison which is why they ultimately ended up being fined a sixteen million dollars for violating the usual how are they and  to to to disclose or make these disclosures when he's not really sure it is the ex parte communication is a disclosure is one thing but the other thing for me is i don't see where in your nd amend complaint you suggest that disclosure of the alleged fraud was inevitable here where do you where do you where do you allege that especially mr  in september of two thousand and fourteen you have the chief ethics officer and compliance officer of that isn't going all the senior staff reminding them of the situation and that how they all were already aware of these issues but they have to be even more vigilant so i don't think it's fair to infer that this was something that people were not see what exactly where what is the situation i mean there's there's not a lot of clarity on communications particularly the meeting in poland that and the quick pro quo involving greenhouse gases gas emissions and if the chief ethics and compliance officer is telling you we were already aware of these rules but we have to be even more as early as the trustee became aware of the fact that there had been this meeting in poland and this discussion of a quid pro quo which i'm putting aside all the other communications that particular meeting and that particular deal are treat are not very confusing they're not complicated they're not something i mean that's a kind of rule anyone can understand one thing and we allegedly became aware of that as early as the beginning of class theory march two thousand and fourteen through the regular communications he received an update think it was after everywhere a two thousand and fifteen disclosure so i'm trying to figure out what what what was supposed to happen you know  at that time because the complaint also alleges that this is stock price peaked in the early two thousand and fifteen and if the probability of disclosure did not increase until two inflation there's been and the less implied volatility there is in the stock and the last time the misrepresentation to the market has gone on all of which should counsel in favor of an earlier rather than waiters closure the idea that inevitability of disclosure has sort of become the watchword of these cases that is a relatively recent development that's not something that is even mentioned in didn't offer didn't offer does not drug a station between to be clear that i'm not criticizing the janitor might might we embrace janitor because the gender court did what most other courts have not done which is to look at all the allegations in concert the generalized ones and the specific ones and consider them all together and in that case the inevitability of disclosure was one of these specific allegations that was more compelling here we make different specific allegations but it is still should be incumbent on this court to consider them all together what has happened is that all the courts have found this one piece of language and do not for that says if they should consider whether publicly disclosing negative information will cause a drop in the stock price and they should consider that before you decide whether it would do more harm than good it taken that language of considering that as one of my many elements and turns that into everything so that if there is even a remote possibility of any the judiciary can imagine a world where there might be a stock dropped from an disclosing no it contained both it contain both general and specific allegations and misplaced if it allegations involved in plotting the increased implied volatility of the stock the way the stock price inflation progressed over the course of the class period all of those the weight of bonds were trading all of those issues should have been taken into account by the defendants and they should have said well yes sometimes an earlier disclosure might be more dangerous but looking at the other factors surrounding what's going on here going on with the stock and looking at the way this is progressing the reasonable thing to do is to disclose this particularly grating to this particular galling missed missed this basically gone misconduct earlier rather than later but i don't get it you don't have those but you're firmed i'd like to take up the discussion of the nd circuit gender case if i could because as the court has no doubt that really is the only authority for the plaintiff relies on in support of her position here the nd circuit also said that those generic allegations do not even come into play that's the court's words unless the plaintiff has shown in a fact specific way that further investigation is not needed and that disclosure would not be premature that is exactly this case for the reasons that the court has observed in relation to the c p u see proceeding further investigation would be needed before a premature disclosure to the market that would cause harm and that disclosure would be premature i'd like to come walk through that see if you see proceeding in a little bit more detail because i think it illustrates  learned new facts about a communication that had occurred in the past that's known as the worse on the evening and so edison filed a notice of it that prompted the consumer groups which effectively were edison's adversaries proceeding to call for an investigation and so that's what happened the l j's at the c p u see ordered the company to produce documents reflecting its communications with the regulator over the prior two years the company did that and i posted them on its website then edison and the consumer groups all brief the issue of just how many communications should have been reported but weren't reported if any consumer groups position was that more than seventy communications should have been reported and therefore were ruled violations edison's position was that the number was either off meaning we reported we followed the notice as we are required to file  and there were no violations as it turned out in august of two thousand and fifteen which is after the class period the a l j issued an opinion it's in the record and if the over fifty page opinion that interpreted to se effectively was acting as an appellate body over the a l j reversed in part and found that the number of unreported communications actually was eight so during this whole period the range of potential of the holding company and has no personal involvement or responsibility in applying the these reporting rules i mr bill at us should have a precipitated a disclosure to the market at some point before this proceeding or during the proceeding of an uncertain or right it's unclear what it would say it's very likely would not say what the c p c eventually found which was there a rule violations because no one knew about  company's position was that there were zero violations so whatever this disclosure would have been a pretty sure i could very easily conclude that it would just create uncertainty in the market which is what the market like as position should have caused harm to the edison stock on it and done so intentionally i so if you're an edison employee you have less money in your circumstances in which a fiduciary will be required to do that but it's not going to be everyone's knock offs it's not going to be every time a security  be one a straightforward fraud maybe something in the line of what was alleged in gender which is a company's failure to write down the value of an asset over two billion dollars and the inevitable disclosure of that inevitably be disclosed that's not the case here where one hundred and eighty dollars degrees from and again the fraud there was a numerical there was a mathematical alleged fraud that's not the case here this case involves the application of these nuanced rules you know that the test is a difficult test i think it's difficult by design the supreme court explained and didn't hoffer why it was announcing th ded in some way just don't match up with didn't offer because the court has done the work the requisite balancing is has already been done you know there's also the notion that well the court did away with the presumption of prudence and therefore the test must somehow be easier in fact i would submit that that reading of didn't hoffer just ignores the latter half of the opinion it ignores the court saying that it's on the just that company's position was that there were zero unreported communications it's that the the number of communications that were under forty if any and their reported effect on the stock price was all unknown during the class period so you know that that link to the stock price is also very important here in terms of the knowledge predicate you know mr bush has no involvement in applying these rules he has no involvement in the communications than himself right and so even you know counsel referred to the warsaw meeting which is the main communication here being kind of describe to the company i think that's a reference to paragraph eighty four of the complaint mr blodgett was not briefed about that meeting when it happened so that there was these predicate knowledge elements that aren't satisfied but even outta knew about the communications knew they should have been reported in his opinion that doesn't mean he knew that not reporting them cause the stock price to be artificially inflated that's the harm to the employees invested in the stock from that's alleged here mr blatter has no involvement in that in securities reporting he has no reason to come precipitate investigation or disclosure when if this claim is to be asserted mr wagner is a member of the trust investment committee and that's the committee that you know under the plan document are the names that you sherry's of the plan oh included tests to to apply for it to be weighed so let me let me ask you about that because it seems like we're required to construe all reasonable inferences in the plaintiff's favor s price is inflated i think that's conclusory and nd the complaint refers to that email that my friend mentioned earlier about the situation i think the court was exactly right there's no situation identified in that  over a certain level of seniority and therefore sophisticated can be tagged with knowledge that any given regulatory reporting violation will artificially inflate the stock price again that's different from gender right i brief as i as i can the all the cases that are cited by defendants and that have happened in the wake of do not offer almost exclusively put the burden on plaintiffs to no more than offer my concern is that we put all the emphasis on the plaintiff having to know knowledge they couldn't have and allege facts they couldn't allege and make inferences they can't make so that we can protect a ris