is a case about labor issues it isn't about to securities case we are still here because the district court below ignored evidence that  drapes that there were material facts that were missed stated in the proxy or a misuse of material facts that made the statement in the murder proxy also or misleading in violation of section fourteen a of the a securities and exchange act the magically there are four separate false or misleading statements that we are proceeding on at this point and they all will lead to the same underlying problem is that the defendants misrepresented or omitted facts which demonstrate that the forecasts that were provided to shareholders and the forecast that were used by the investment bankers were manipulated downward to justify an otherwise unfair price those statements are or fundamentally these for the  st is related to the fact that there is evidence that those those fo forecast in other words the proxy statement says that the forecasts that were used in the fairness opinion or for the fairness of opinion were updated based on operational issues when the evidence shows exactly contrary that there was a set of projections that was prepared at the bottom of the manner for the preparation bottom up manner for the preparation of the fairest opinion and after they already considered all of the me counselor and might correct that let's said that the last quarter results can still inform future projections because that is what the results showed about customer trends and of tracks it is true that he said that but again the issue is if you look at the s b u productions from what dependent the mit those were the foundation for the fairness production those were updated all the way up through that time and that time in november and december so all of those factors according to all the evidence that's in the record was already there and we can sort of go if i didn't i'm happy to spend the time to go through that evidence but as we set forth there is evidence to show that all of those factors were in fact considered in this ten percent haircut came on top and again where at summary judgment so that at best is an issue of fact that can be determined by the jury trial but it's not one that you can determine housing mal law that absolutely that doesn't that didn't count and indeed judge calmly didn't look at that issue at all the  and rd false statements all relate to this set of forecasts which were the to live projections and i think it's important to note that under reg fourteen a defendant had no obligation to discuss the drill law i projection did all right there is nothing in the regs that said that they actually had to discuss historic projections they never be relied on those projections they did not claim that the fairness was based on the projections they only put those that set of projections in in order to set forth this fabrication that the projections that we alternately were used were not somehow manipulated downward and they did that in two weight projections were not quote materially different from the december projections and then said the only difference was in the result that in two thousand and sixteen adjusted even dollar figures of approximately twelve percent higher so they're saying yes and twenty as well and those numbers were dramatically higher so by st committing the fact that there were not long term the longer projections were presented in that and basically hiding that fact that that would be a comparison that shareholders would want to make to determine whether those are manipulated downward and the fact that you actually missed amid the fact that not only was two thousand and sixteen material different but if you look at the numbers the number high was nineteen percent higher than the fairness protections and that by the time you got to two thousand and twenty that projections in the various projections were thirty we percent higher this is material information this was information that was about not only what how the board came to its opinion that was fair but specifically said that they brought to light on the idea and it's a double negative in the proxy statement but it says that they did not include an acquisition and that were not anticipated judged kearney who ruled on the motion to dismiss specifically understood and said his interpretation i think is the most fair and her protection of that language he said quote lyon bridge incorporated anticipated transactions into the forecasts which an investor may read to mean that line bridge incorporated into the forecast acquisitions that anticipated making at the time it created the forecasts joe good morning also said language could only account for anticipated transactions and told shareholders that did proxy statement doesn't say that they are accounting for anticipated transactions or they are including anticipated transactions i think that's a fair hack and i think what they say that they use it it's more of a double negative they say matter of logic then it that the anticipated transactions i mean it doesn't speak to the anticipated transactions or to speak to them not anticipated transactions right all i not anticipated there is no basis for saying that if what you are if you're saying well you know those that are anticipated aren't in there and back all other transactions that are anticipated are for anticipated sims and told several that they could do so if you're not anticipating if it's some transaction that we know was there what the evidence shows here was that specifically transactions that were quote unquote anticipated closing within the next few months that means just like they were expecting contracts to comment just like they were expecting to pay payroll all of these things couldn't happen didn't happen yet what did it what did conley said as well only the transactions could be there if you didn't know about them but the reality is nothing you don't know about or nothing you don't anticipate as ever in productions there are things in we raise in our brief that if indeed judge kearney and interpreted that as a proxy language to say that anticipate a transaction call you murders were in there if again we have evidence of client we have anticipated we have evidence of analysts who all interpreted the same language in the proxy to say that anticipated that was this and that we know there were at least three in the record or in there and that is misleading and in it in mind rich stated that in his view the proxy would only include announced acquisitions once that are guaranteed to close something that hasn't been announced in my view he said it would be at risk i believe in reviewing this is that projections would include specifically specific acquisitions would only include specific acquisitions if they were no guaranteeing another representative said the institutional shareholder service stated that he also understood that projections did not include acquisitions that have not been completed nor a series of smaller acquisitions including such acquisitions with their forward not the something that typically happens so is there any evidence or than the alternative view of the target anticipated acquisitions other than what the representatives of your clients set forth all i generally i think that doug kearney actually had the alternative transaction what we know is that by definition or by their own words of the corporation the there were three anticipated acquisitions it's of one is a transaction they are absolutely not in the set of projections defenders don't even challenge that question so the question is simply their statement of fact that they are included or they are not included is false in the proxy statement at least that implication they had the opportunity they could have said we have three transactions though remember they're not limited they choose to put this information in for regulation fourteen a doesn't mandate they could have said we have three transactions that have been approved that we anticipate closing within a few months those transactions and the value associated with that is not included in the process or in the forecast that was fully within what that would have been accurate disclosure had they done so we don't have a claim here right this is because the claim is fourteen and it is simply whether or not they were emitted information or whether the statements were false they could have done so they did not and what they said was false or at least at a minimum that a jury can make that determination as to whether they are false in the end the defendants don't actually have at the end they have no real defenses to whether or not we should go forward at this stage on the evidence that was before the court i think i'd use all of my time or all of my time  questions i can answer for the board at this legal arguments pertinent to this appeal obviously but before turning to them i want to at least offer a short response to the comments from my colleague implying that the sale was somehow a raw deal for line british shareholders before the sale lion bridge was performing poorly its stock price had risen had fallen by eighteen percent in the three full years preceding its sale compared to two indices appear companies which each wrote during that same period  nineteen percent and twenty percent significant rate this is during the same period of time when plaintiff alleges that lion bridge was highly acquisitive acquiring seven other companies your owners shareholders just weren't buying that acquisition increase line bridges value in the st three quarters of two thousand and sixteen the three quarters immediately preceding the sale lion bridge missed its ex if earnings expectations by huge amounts eighty seven percent in the st quarter forty one percent in the nd quarter and forty nine percent in the rd quarter the sale was then a culmination of a year long process that included a go shop no one offered a higher price than a chat geez five hundred and seventy five dollars per share that right was greater than the price at which language a stock was trading at the points on the public exchange and it was a twenty four percent premium over the average price in the preceding year when the sale was announced and in light of languages repeated failures to meet its own projections claim just investment manager referred to it as a quote yes significantly no one in plain just entire organization read or even received the proxy statement at issue in this case even so before the shareholder vote plaintiffs instructed its investment manager to retain shares so that it could sue yet claim it did nothing to raise its concerns with lion bridge at the time rather it voted on the sale and voted in favor of the sale and then it suit on this appeal plaintiff challenges t isolated statements in the ninety seven dollars page proxy statement each of which led to a decision by the district court and i want to be clear about this because my colleague has conflated them a little bit st there was a summary judgment for defendants on one alleged misstatement no earlier than that there was a denial of a motion for leave to amend the complaint and add an additional edge for me so i'd like to address the two decisions by the district court in that order summary judgment st and then the denial of the of the motion believed to match at the summary judgment the soul searching the order or actually apap correct your honor to focus not on what i think is the more important decision for us but  sole alleged mistake written that remaining in the case was the proxy statement disclosure that the board had concluded that a fairness opinion from its financial advisor was one of many reasons supporting line but just settle the parties don't  that the alleged misstatement is an opinion subject to the supreme court's on the care decision there is no dispute on appeal but the director sincerely believes that the fairness opinion was the reason supporting the sale rather plaintiff argues now that the disclosure was misleading because the fairness opinion relied in part on projections of future performance that did not include potential future acquisitions are great they're articulated for independent reasons  court correctly held it made clear to a reasonable investor that projections were not in would the projections did not include future acquisition another judge independently reached the same conclusion about nearly identical language and that the balance vs harm and decision cited in our brief as a result because the proxy statement expressly disclosed that the projections did not include future acquisitions the statement of the board's opinion regarding the var that we are not including transactions that are not anticipated so if you're not including transactions that are not into succeeded that implies at least potentially summarized it and did it better justice than it does for itself but but we're all agreeing that it is an exclusionary them and mister behrens argument is that exclusionary sentence implies the inclusion of what is not  but x and that the in addition the projections don't include any transaction given back grammatical construction so exclusion sentence one that m barron like and then in addition over and above whatever that sentence adds here is an additional exclusion and that one has no qualifications it does not include and i don't want to i'm going to just leave that when we know as a matter of fact months before xico transaction close so it wasn't like the projection it was like there was a three day interval it was a three month interval and the fact of the matter is your honor is that transactions until they close are always things are routinely not included by corporation because they are highly uncertain admin for as the plaintiffs only represent the idea that he testified that he was not reading the language in the profit statement he understood that to announce that headline read still been a public company at the time we have not made an argument as to material to materiality about all three of those transactions combined but but the question not get to that question there's no need to because st of all colleague on the other side says that that sort of proof that reasonable minds can disagree because we've got two federal judges reading that went which differently i as i understand your rejoin to that you're saying that you can't deny that two judges disagreed on the language that's that's a fact but is it your argument that it's immaterial because this is not the type of thing with be and are so are so our argument is just counting just got it wrong and that happens sometimes with no disrespect to judge perry we believe he got it wrong that's what judge conway held off and we think if you look at the grammatical construction of these two sentences you'll reach the same result  more fundamentally it simply is not true it is inconsistent with process where one judge hole that statutory language is language is ambiguous another judge or a can't follow but i'm to disagree with that if mister behrens argument was correct that that would apply in statutory construction cases and contract cases if a district court judge held that language was ambiguous a an appellate panel or us interpretations we think he got it wrong because he didn't look at the three sentences to get what he did was simply look at the st sentence and didn't look at how they're constructed together exclusion sentence one still on the summary judgment claim that the court should look at if it gets past the language and that is that make it can't avoid that at its core its claim is that the board's opinion indorse the reliability of the projection and although can't claim that other language in the proxy statement was misleading because of the flood the projections were liable here as we detail in our brief the process statement has pages of cautionary language about the projections including that actual results will differ a few material ways and that no one from line bridge was indicating the projections were alive and initial matter this cautionary language means under terrorist law that that no reasonable investor could have been misled by the board's opinion because the proxy statement adequately explained the basis for that opinion or the bases that the board believed that the financial advisor spareness opinion was a positive reason to support the sale even though the fairness opinion use projection but the board would not stand by and affirmatively displaying nd the disclosures mayme under oh and by that plaintiff claim is foreclosed because the projections were not disclosed as a reliable estimate of future performance but only would be fine on your shareholders probably have a multiplicity of views they could conclude that or they could conclude that the board uses this as one indicator among many and frankly even within the fairness opinion there's ten different analyses some of which use the projections some of which down i think what it is is ford's tend to like to look at a variety of different inputs none of which are perfect and they but all of which in the aggregate they consider so here the board had  here nonetheless it had projections and share them with the financial advisor in the financial advisor said based on these projections here's what we would think and then here's a bunch of other analyses as well and the board can take that for what it's worth the fact then that these were disclose along with the caution i think is important in fact it tells the shareholders not us here is the things we were looking at you can make up your own mind to help valuable they you think they are so that's what that's what's going on judge har n and i think that's reflective of other companies as well this is not this is not anything unique in fact the plaintiffs itself cited forty six different instances in only the three months surrounding this process statement where the same or similar is that just in your view evidence is a safe approach a conservative approach that you know we don't want somebody suing us because we are putting the numbers here we just want your position on that well i want to be clear there is no evidence in the rafters about what specifically motivated to do so so the evidence is clear that that the that management of the company is reduced by ten percent it and none of the documents it's quite so my own my own sense is well actually my own sense that not is not relevant here so there's no evidence of it but that has nothing to do with acquisition so when we're talking about the summary judgment claim your honor i that sounds like it was when you said there's no evidence in the record that sounds like it was arbitrary or it but i thought also there was something in the record that it was based on the updated two thousand and sixteen fiscal year for exchange act case as the plaintiff alleged with particulary any facts suggesting that that contingency that ten percent contingency was not motivated by the company's poor performance missing expectations  huge amounts in twenty six dollars and was rather just arbitrary there is no evidence for i don't have one but the main argument i wanted to make the math want to leave this morning is that the court doesn't even have to reach that issue says baldly that that the alleged misstatements clause shareholders to believe that the merger was more attractive than it truly was and that had shareholders been informed of these alternative projections that mister baron as spoke about already they would have quote understood that the company was worth materially more than the proxy statement that claim runs the plaintiff directly into this court's holding you know i asset management which held that where a profit statement explains that that is correct your honor and that's what the district court that's not what up by feel although i held which which was not a new rule but but simply a well established rule is that words have meaning and they're given those meanings and they appear in f c c fine if they if a process statement indicate the projections  committee they could have actually created a set a projection for well apple and put those in there and said these are our projections that could have been false and therefore by says it doesn't matter you can make a completely false statement even have to the very nature of the projections and sells and it doesn't matter because according to mister rabinowitz then it will be you know shareholders are relying on it and we tell shareholders they shouldn't rely on those because their future expectations that we can trust law that's not what court did in that three judge panel they didn't come up with this rule that any time you are relating to objections and the materiality of that those projections were talking on the materiality not the falsity is because you as a shareholder are going to believe that that set of forecasts which such for the value commensurate with what you are getting is something you would rely on is not the same as saying you can just simply lot and looking at is a very strange case to rely on in that because in the primary issue was an open market securities fraud the plaintiffs in oh well i brought that case because they bought him stock in the open market after the murder based upon what was said in the merger agreement the proxy statement and some analyst reports and what they said was we bought because we saw what what they said we saw that what the price was going to increase to in the sale and we didn't know that you guys continued to do  analysis and that your analysis would show that the deal was unlikely to go what may not go through when the deal did not go through their stock price drop there was never an issue and of shareholders who were holders of fourteen a claim and those sentences quite honestly don't make any sense because there's no causation to a forty eight claim because the plaintiffs in by were not actually shareholders who were voting on the product who who were making that decision or they weren't bringing a claim because they were making the decision that they wanted to sell their shares in the merger they were saying we bought our stock at an artificially inflated price so i guess oh if i was a really strange case for this overall proposition that anytime you're sort of tangentially a rate related to projections that you can make false statements and i think what is significant is that again mister rabinowitz just like the district  court on the basis that oh if i was this all encompassing reason not to include ignore the evidence that was before as to false statements and that was sort of the only way they could get away from the  details false statements that we have and again defendants have absolutely no argument to the fact that and you tried you asked them that the ten percent haircut is not disclose what they makes them false and misleading in and of themselves and mister rabinowitz says nothing about whether they disclose that and in fact they did not disclose that and that in and of itself had a material impact on that value on that value similarly with regard to the deloitte forecast this for a bit which has nothing to say about the fact that those july forecasts didn't need to be disclosed and the only purpose of the disclosure of the july suctions was so that they could say hey they were only moderately different in twenty six team but the reality is that share the reason that they bonded material the reason that the defendant chose to put that information in front of shareholders is to be able to say look we did not manipulate these down but putting in the truth out shows exactly that manipulation and again mister rabinowitz has absolutely nothing to say about the fact that that was a parcel statement that was misleading because it implies that there was only a twelve percent difference between july and december one in fact it was as high as thirty three percent in the in the law and the final year and then we get and then we get to the final say the final production which is the issue of the acquisitions and once again it is not it is not reasonable to say this is decided as a matter of law materiality in t f t p northway it has always been a mix question of fact and it is up to a durie to make the determination as to whether or not they think the statement implies one thing or another what the fact that judge kearney and calmly interpret it different is exactly the issue that the jury would decide and they can decide that based upon all of the fam and i would why why would interpretation of the proxy statement be a question of fact when the jury would seems like you had a cause in the question  that's what i'm suggesting is that the court the court has to decide what the language says and then perhaps it goes to the jury to jury to determine whether that l misleading and i would say that i have a and never seen that done before and delaware or in any federal court decision which the courts that this is what this statement means and telling a jury what a statement means because that is exactly what the jury is supposed to decide what does it mean if you're if you're right about that wouldn't every proxy statement seeds have to go to a jury trial no because you wouldn't have you  that it does not include non transactions that were not anticipated that novel negative now i agree that there is a confusion between what it says later and that seems like that is exactly what a dreary house to determine which way or leave it if you tell if used jerk for example in one part of the proxy that none of your directors are conflicted and in another part of the proxy you just an interpretation by mister rabinowitz the statement that says we're not including future acquisitions is just clarifying that you're not including the future of things that you do not know will happen or not that is exactly judge interpretation of that and to say that it does occur even interpret that is the fault there right next to each other and he said look obviously you count include things you don't know about but all of projection or projecting things that un tis have paid that may or may not happen nothing in the set of projections is guaranteed everything is at risk just new contracts coming in whether or not whether or not you're going to be able to have synergies whether or not you're going to be able to whether or not you're going to have payrolls all of those things in the future are only anticipated and the argument that that mister a betterment wants to make that well they didn't happen is is actually goes the other way because what happened is after the company got sold they've shows to abandon those two anticipated two of the three hunters a period in order to pursue one significantly larger acquisition so you get if you look at what happened in then ultimately the company to extremely well and it is now announced that it's going to sell itself some portion and some price or part of it for some  over what it was purchased for we don't look at because the question is when you are projecting out where you are always projecting out word for things you anticipate will occur but you can't project for things that you don't know about and that all the proxy statements that we don't know about all of the acquisitions yes we have an acquisition program yes we have been doing it is quarterly yes we are roll up and that is part of our business but we we don't know which one we will do or not but they did you know three that they anticipated close with a month and one of them did and those three alone or five are five percent and that material along with all the other issues i can talk specific statements that were materially false misleading any one of those for support a denial a summary judgment we should be able to go to the jury to make the decision on all of them but even one of them would allow us to go back to the jury to demonstrate those that that falsity there is no reason to ignore that that was evidence that was both on notice to the court and on to mister rabinowitz and his client to know what the material the false statements were that we learn information we couldn't thank you very much mister barron thank you mister rabinovitch thanks for the excellent briefing an argument the court will take the matter under advisement