is one of the defendants stronger points on the st issue which will be my focus and that is the abandonment issue and that is the part of the principle of party presentation and the limitations of that we have a case here that comes on appeal in an unusual posture where we have a private securities class action and in parallel an c enforcement action making very similar and largely identical allegations for the same district court and the district judge upheld part of the c c s complaint while dismissing entirely the private securities complaint which is why it's on appeal and i want to suggest in particular that there are two ways to resolve that issue in this unusual posture of the abandonment issue one is more broadly to explore the bounds in limits of abandonment as a principle in motion practice and district courts which is covered in our briefing but there's also  a more narrow basis for decisions here that i think compels reversal based on the said discretion and i want to go through the sequence of that just very briefly in our case briefing closed and paragraph ninety one involving the long term opportunity statement was not addressed in a motion to have one minute left will be a st printing thank you paragraph ninety one was not closes and then the private securities case is dismissed and july th seen in part based on the abandonment rationale and all and then at that point lead plaintiff move for reconsideration and i think here to the extent the principal part of the presentation was significant i think it evaporates at the motion stage under rule fifty  nine because then it's it's indisputably presented that's what rule fifty nine dollars is for it's a motion to alter the judgment and just to summarize the circumstances at that point of viable claim is alleged and the f c c order under paragraph and i mean one and the entry of judgment not being sacrosanct we have the same complaint in our action both before sense that paragraph ninety one is a factual allegation doesn't make much sense that reliance on the factual allegation is simply because it's not referenced in the briefing on the motion to dismiss that is that is that right in the context of securities fraud cases i mean your client is obligated to identify material misrepresentations or emissions and we analyze them statement by statement to make sure they're sufficiently will well pled so in this context you know is there an obligation to argue on a motion to dismiss or otherwise it's fair to say that you've been politically abandon reliance on that statement i think there's an of say there's a tort claim or contract claim and the contract claim clearly isn't argued to make it very simple and here the record coming up includes reconsideration which is a legitimate part of the process where the point is or you and the inconsistency is identified and didn't exist when the motion was brief and securities fraud being one of the tougher areas to plead and civil litigation there's the benefit of the f c c order and the plaintiff seeking reconsideration and i think candidly the the lack of support for the reconsideration niall is illustrated complain and did incorporate it but what i what i try to suggest at the outset is there are two ways analyze this st that factual allegations especially at the pleading stage of litigation cannot be deemed abandoned and at least on on this record for reconsideration is timely sought that means that the line length actually allegations and never be waived the motion dismissed page you could pull up any you could resort back anything actually gave an allegation whether you argued it or not i don't know how far back that would necessarily need to go on on this  reconsideration so the broader question of which which is is in the briefing can a factual allegation of the abstract ever be waived i'm not sure it's necessary to explore the bounds of that i mean does that require an intentional waiver on one minute of your total thank you does that require something more intentional as as an intentional of a known right or a waiver but as i reviewed this case in preparing i think that argument is there but more broadly i don't see how it's not an abuse of discretion to can reconsideration here when the inconsistency is plainly identified and the rationales for sustaining reconsideration simply don't hold up i mean if it could be can i ask let's assume for the moment that we  my memory is correct judge tours messy see action specifically declined to take judicial notice of it for that purpose and it was not in the end as a matter of law at the pleading stage i don't see how that could i think it could be considered for that along with a mix of other news that that didn't flag that for the bulk of investors and is really more appropriate for summary judgment or trial there is no need for a massive restatement of financial results at the end of two thousand and twelve if everybody everyone already knew about it and the board chairman apparently was not aware at least as of late tw is i believe there was a tolling agreement and the f c c action which allows the f c c to pursue certain statements made before october of two thousand and twelve that does not apply to our case and so the defendants have the benefit of that in terms abandon the long term opportunity statement when opposing the motion to dismiss appellant brief defendant nine alleged false statements in the section titled quote all statements made by defendants long term opportunity was mentioned  opportunity what rule of civil procedure in your view authorizes  that we saw or missing a d some crucial fact it was simply the judge determining that counsel counsel but again made its own decision about what to press and what not to again travellers do that every and in i don't think there's any and me and correct me if i'm wrong but i don't think there is a rule of the bill procedure that is telling us that we can deem the failure to talk about a particular factual of your meant as a judge parker i think you had your papers at some point that this was a strategic decision by plaintiffs and i was wondering if you could explain how that would be the case i don't really understand the strategy behind aband brings in the long term opportunity with the potential to grow beyond twenty five million dollars tons per annum this circuit's case while it's clear that corporate officers can make optimistic statements about the future in the company's d opportunities and prospects what they can't do is offer guarantee of some concrete outcome or fact that turns out to be false or that doesn't occur here mr alba need to state clearly indicate that he's not offering any guarantee to the contrary his comment was couched in cautionary terms  which is again typical for these types of projects as is clear in the face of our real changes disclosures and mr allen is along with the company responded by pursuing the challenges and specifically co chair himself  the value is and as is reflected in the documents quoted in the complaint the appropriate for consideration that's in motion a series of projects both studies as to the geological and mineral situation directed the managers on the project to seek out partners to construct a bring on light rail operations which is typical of these types of projects in the in these areas as is totally normal faced significant infrastructure challenges and the n major event would be dispositive referring and summary judge judge that there are other claims that issue and there are other statements that issue supporting allegations allegedly for ten b so bored this court to that but that case would certainly proceed including the pending tenby claim because there are other statements at issue in that action thanking with moving thank you mr green reserve two minutes of the battle thank you your honor i'll be brief i have just two points st on on abandonment on this record it's it's really something of a misnomer doesn't fit because paragraph ninety one was in the complaint initially it's still in the complaint now it was in the complaint on reconsideration lead plaintiff didn't file for example a statement resting on its complaint as drafted inappropriately sought reconsideration under rule fifty nine t and nd what i'm hearing and some arguments here are really fact disputes going to the merits or other other inferences that can be drawn from the complaint allegations and not the defendant's responses on a motion to dismiss and with that i'll submit thank you thank you all very very nicely done