greater liquidity when the defendants already decided not to list quote upon completion unquote of the plane or a light merger how could it not be misleading the heart of our securities regulatory system is disclosure here although defendants knew the thing stark would be relegated to trading on the over the counter bulletin board appoint completion of this problem you cannot spar cannot be approved cannot be traded until the deal is complete in this case because spain was not a public company then star could price just took a nosedive that would be rolling the eight you have to have a an efficient market you have to have some mechanism that characterized event understand where he was coming from let's say he's coming from ten to five cases right and if in fact you know his his point was that just the if the market price did not react then that's the evidence of materiality your point i think being on a national market system or growing and it's like you want to a prestigious college it made it difficult to get into but it's extremely much more difficult to get thrown out of the national market system to get into you need a fi to stay on all you need is a one dollar bill so by by not going in and and not telling anybody why you're not listed on the on the international market system they created this confusion in the market the price alternately this stock went down by ninety six percent in seven months unless i missed a depression or this company filed bankruptcy there's no reason for that other the fish and market the price is irrelevant for any kind of consideration of either reliance intend the five cases on the to reality but in the judge sonia says maybe it's not a one for one it doesn't follow exactly what one pattern but you know after after a certain period of time we can we can discern something about what the market did is that would be wrong about that that's the defendant's expert's theory that the sum of the information that the market was capable of absorbing some information the law is clear and starting with the  eugene family develop the efficient market hypothesis that the market has to be able to the company has the market has to do all all information not some information and so that i think it's  case comes to the court for review following a carefully considered opinion by the district court judge judge selma who conducted a bench trial that made effective and efficient use of direct testimony testimony by way of declaration  the cross examination of both recipient and expert witnesses in extensive examination of the witnesses by the trial judge himself the opinion should be affirmed for the following three reasons first there was no misstatement or  first there were only two statements that were made that they would use quote commercially reasonable efforts to cause it shares to be qualified and approved for quotation on the national market system or a national exchange half its stock valued at five dollars and do everything but refused to pay whatever the one hundred dollars filing fee or whatever it takes to be listed on the nasdaq literally that's all that was required and so so you have a literally true statement there now i know what's what's behind the question you we're not act we have no intention of actually listing ourselves on that right so you have to cross currents going on here one is that if you look at the black letter law of section twelve each to the black letter of law says that we don't look at the motivation of buying ten dollars stock that's going to trade on the new york stock exchange the guy who sold it to him and he got it for a dollar and the company is actually in bankruptcy or about to going to bankruptcy your it's pretty clear from from the from the underlying evidence that second of event occurs and then we'll go live and list on the nasdaq by the time the second event occurs the stock is below five dollars and thing in fact is not qualified to go on the nasdaq so it looks like through the entire period that we've complaint which is june and july we used commercially reasonable efforts to cause the outstanding start immediately after the merger to be approved for quotation as well as practical exactly right what we were approved for quotation before the merger so that condition w other big takeaway on this is that you know we had a trial here we had the district court sitting as the trier of fact who you know if i were coming up to you on a twelve week six motion i reasonably that this wasn't a promise that we were going to list this was this was a accurate statement of fact that we had satisfied all the requirements for the state and the judge also heard the evidence that say that everyone had th doing this other faction and it will benefit everybody here where you have a small company that is listening to the investment bankers that is trying to do the best think that their self interested for themselves and for their shareholders  theory of the case was that we have a list that immediately and the evidence that the district court accepted was that one that were used that word immediately wasn't used we never said we were going to lose that immediately and quite understand even the relevance of that is it your view that or that investor has to look up past copies of the prospectus to see if you can discern differences or through like a legislative history search well the relevance of that is that it was the plaintiff's expert it was the plaintiff's expert that said the market was paying attention to the difference between that first version of the prospectus that said it was a condition of the merger and the third amended misrepresentation in the prospectus because in your view they had to make they had to list immediately she said yes so the case that was tried was that this management despite the fact that it doesn't say anything about we will immediately  really for the opposite of what was happening basically camera if you look at basic and camera and you look at what's really going on in those cases what's going on is courts are using the science of economics and applying information had been impounded into the stock price such that we could reach a reasonable conclusion that even if there was a misrepresentation here it was not material and well vul due respect to mr feffer he's got it wrong on information that not being absorbed by the market well that was never going to be possible here we're talking about the most open and obvious fact possible namely where is the stock trade nobody could make a supernormal profit based upon where th that information was absorbed into the marketplace virtually immediately and again we have to look at the case that we actually have here we don't have a closed case here if we were coming at up on appeal we were saying have only four percent of the shareholders selling during that period we have twenty seven percent of the shareholders including the tune in play just in this case we're going into the very very end we have the economic literature that's discussed in our br relied upon actually says that sixty percent of the time there was a beneficial effect of a modest beneficial effect of less than one percent forty percent of the time it went the other way it's not clear what whether you would get any benefit at all here the plaintiffs offer the district court judge nothing to go on in terms of assessing materiality other then really and if he takes that assertion that it was  likelihood that's the criteria that's t o c that the omitted or misstated information would have caused the investor to make another decision and the point to make is that convergent and may have been trying to do the right good but it's totally irrelevant to our claim we wanted disclosure there was no reason why they couldn't tell us let us make the decision they w stockholders make the decision but the stockholders would have known immediately that the condition had not been satisfied they were not listing it on the nasdaq that it was only being listed on the o t c b b and the price had gone up now if they felt misled about that felt like that was a disadvantage that would've been a really good time to sell it one of except that there is more than sufficient evidence in the spot in this record that when she hold this called up the company to find out happening they were told don't worry we have an exciting announcement coming down but but an exciting announcement could be a lot of things i mean that that maybe some other kind of misrepresentation but i think i can imagine other things that might have happened you know intel is about to buy us you know good news that's probably what the who knows what people are thinking but that's not a to move to violations of the securities what does it make you know that you respect this they should that they should have