make sure i understand you or your your claim is based on leaving out the chart that compared premiums obtained by other companies in the field correct yes because that's the best that's the only omission that you claim made the statement misleading one hundred percent correct ok and that short was appended to your complaint correct it's actually easy i went to  put it in that tax we got on pasted it into come right yet was it it was in your so so the district court could because it was before it look at that chart and determine whether as a matter of law it was material or misleading to leave it out correct that's where we disagree because we have it if certainly if you certainly put it before the court it didn't go outside the record if it was looking at the face of the complaint how your money damages would how would they be measured would they be measured by a hypothetical merger that nobody has ever offered to this corporation and you got a twenty five percent premium on your stock your client did anyway so what would the money damages be and how would they be proved and i ask this because the question is whether we should employ a private cause of action and in this case where the mergers already the report is the goldman sachs report is it accurate we place where it says you've got a company here that's performing below the average for the industry and apparently you got a tender offer that was close to average a little boy oh so why would it be material to know that companies that perform better got better got better offers all i think you would be able to compare your premium to the rest of the market it might be it might be very interesting but why would a reasonable investor not go through with this deal if the information submitted rephrase my question a little bit let's assume that the goldman sachs report said this is the worst performing company in this industry we've ever seen but it's premium offer were not the worst we've ever seen with the fail all due respect i don't agree that because they got twenty six percent premium that's cordoned off that's not how it works and by the way the that the facts here i also disagree that they were not performing well but those aren't actual issues with wouldn't have a problem right with the entire report let's assume that they attached it and reason i'm tired to report the entire report says you have a poor performing company so you don't challenge the accuracy of that indeed that part that pours so i'm trying to figure out whether or not it's just automatically material because this is interesting information or whether it's material because a reasonable investor might have made a different decision had he known that information and when i bring cases that show that this was important i don't think you can implicitly you're implying it you're you're you're saying we must've recognized that there i'm asking a very specific question there's any court to your knowledge ever expressly said there is a private implied private course of action under fourteen e for one hundred percent i'm not sure i want to go to the supreme court on a judicial stoppel theory that they made some argument that turns out to be a kind of a a weak argument because the premises are wrong and  reviewed and back oh ok now you decide to reserve three minutes you're down to about forty five seconds a lesser of the other side but we'll make sure you get a chance to respond thank you very much we're not going to muted my apologies your honor and thank you your honors may have please the court our position is that there is no implied private right of action at all for negligence under section fourteen e g of the exchange ac no court has ever recognized such an implied right of action not not this court which is only recognized it in the context of a cause of action for intentional wrongdoing under section fourteen or any other court and we w and on the basis of that we we said that there was no basis to imply a private right for negligence under section d four of the exchange jack section fourteen which involves a rule making provisions there's there's we never acknowledge the existence of an implied private right for negligence under section fourteen a an argument today is perfectly consistent with the one we made with respect to d four which is there's no basis for inferring taking the leap in inferring an implied right of action for negligence and this court confronted a similar situation as did courts across the country with respect to section seventeen a of the securities laws there courts had always assumed that it was only good for c enter once the supreme court held that the cause of action extended to negligence courts across the country including the th circuit held that you could no longer imply a private right for negligence under that provision indeed this court said that implying a right of action for negligence under section a would be fraught with danger and we have the same problems here and and fundamentally the problem is your honor is that an implied right of action for negligence runs headlong into statute statutory provisions like the express procedural restrictions on the negligence actions that congress created in section eleven of the securities laws when congress creates a negligence action it adds added procedural restrictions to restrain that that are absent when you when a court implies a private right of action for negligence so we accept today the courts prior panel decision that seventeen a on its face extends to negligence we don't challenge that today but the implied right of action that the court had previously recognized foresee enter and intentional wrongdoing under fourteen he cannot be extended to claims for negligence and again the court has never considered that issue before it is squarely raised before you today it was presented to the supreme court they declined to resolve it perhaps because they wish to get the views of this court on it we raised it before the district court the district court said it was not the right court to address it but there's no impediment to the court reaching that issue today and it really is the threshold question before this court because if there's no implied private right of action for negligence then there's really no reason for this court to be opining on whether or not the particular allegations here state a claim f i would make is that this court and other courts supreme court have made clear that there's no prohibition in section fourteen easy on all missions no matter how ministerial no i understand that so so the question is whether or not they've identified in a it's sort of hard for me to believe that it was just left out negligently but that's sort of the way this case is served up to us right that's correct and again to prove see enter they would have to prove you know the adjutant the added requirements array but i think the fundamental problem is that they haven't pleaded a statement that is misleading and with respect to the premium statement that we discussed earlier i think there for reasons why that is number one that statement simply refers to t point four percent premium as one of twelve reasons to support a merger recommendation statement didn't make any comparison to any other premiums didn't state that that premium was high or above average and of course by definition half of all premiums are below average number two as a district court explained the twenty six four percent premium while below average was never less within the normal range of transactions reflected on the semiconductor transaction chart i think you're  with respect to the mean that the point i would make is just her what's point is that plaintiffs have been challenge the statement that ultimately the eight dollars share price was fair which is quite notable can how how could the reference to the twenty six  percent prima as one of twelve reasons to support the merger be misleading that they themselves acknowledge that the the eight dollars share price was fairer than the th point i would make is that again as judge her words acknowledge that other material in the recommendation statement and page sixty one of the are disclosed that anyone acts while performing solidly was nevertheless performing below average compared to the closest pure companies and this was reflected in the selected companies analysis so that's a perfect explanation as to why even if they got a premium below average that would have been a perfectly fair and appropriate reason to support the merger now this mr graham how do we and we measure materiality here so let's assume that everything you're saying is correct that as an investor had i seen this chart it wouldn't have changed my mind indeed it might have reinforced my view that this was a fair merger but it's really something that i would have liked to have seen before i made a decision it's the kind of material a reasonable investor would like would expect to have received what's the measure of materiality here sure well  i would say point you to footnote eight of the regal pharmaceuticals st decision where the court said correctly that the question isn't whether a shareholder might find the information helpful or even material it's whether or not they've made a misleading statement and so i think you need to distinguish between whether the statement is myths misleading and whether the chart on its own somehow meets materiality standards so i think the key question before this court is whether the statement is misleading and a number of what is the state this case turns out well there's two that they've pleaded your honor one the statement that the twenty six four percent premium was one of twelve reasons to support the merger and the nd is the reference to summary in the recommendation statement which i frankly find hard to understand in that by definition a summary doesn't include all information and the recommendation statement here on pages fifty nine of the e r and sixty one explicitly sa that it did not include all of the financial analyses included by goldman sachs but on the question of whether it's misleading this court has said that the standard is whether or not the statement affirmatively creates an impression that differs in a material way  then the state of affairs that actually existed and the statement that a twenty six four percent premium in this case was a reason one of twelve to support the merger does not differ in any material way with the state of affairs that actually existed that they just didn't want to go through the action or extra actual nation that was going on why was it left sure your honor the bottom line is we don't know the answer to that and i don't think it's relevant to whether the statement itself w misleading but what i would say is a couple of things your honor number one it's settled of course that directors and companies have to make decisions all the time about what information is not disclosed and not all information has to disclosed so that's point one point two is that here they may they may well have determined that the transactions in the semiconductor company chart were not particularly probative because those companies were not really at the heart of the that that's true your honor but but the question the legal question under section fourteen is whether what they said was in any way misleading and i believe it was not as a matter of law for the for reasons that i gave and again i mean i would point the  to page forty four dollars to forty five dollars of the matrices initiatives case by the supreme court where the court emphasized that it's not what was admitted companies control what whether or not they violate the securities laws by what they say and the question is whether or not whether or not what they have said is misleading and here nothing is misleading about stating that a twenty six four percent premium was a reason one of twelve to support the merger here particularly where that premium was well within the range of other premiums even on that chart and where plaintiffs themselves acknowledged that the ultimate share price that they received eight dollars was fair and where they where that recommendation statement disclosed that this was a company that all those performing solidly dollars our share merger consideration was inadequate had experienced significant growth in the monster leading to the tender offer and had consistently exceeded management's revenues and earning right if the chart had been included you wouldn't have a cause of action here so so it's not it's if you're claiming that some statement became misleading because the chart w left out you can't because you're not making a substantive claim that the merger was unfair because that's not a fortini claim is it alright i'm saying we have damages i'm saying i believe at trial i'll be able to prove damages but so so tell me why using the standards the supreme court's given us we would find statement in the specific statement in the recommendation to be misleading because of the omiss