whites for the point of class of investors or owners in a case involving a four billion dollar merger all that happened between the time that the district court upheld the complaint discovery amounting to me to watch forty two pages of discovery by discovery well other than the forty two pages they were all public documents that had either been previously attached to the complaint or were available  public documents the forty two pages amounted to the script of defendant johnston's intended remarks at the march fourth merrill lynch conference and some sixty five plan to present issues that they understood as being upheld by the district court and the only issue the only question an issue in this case is it not is whether or not johnson and rosen actually made the absolutely and they pointed to themselves there's a there's a point and i want to answer your question and also clarify something to answer your question the place where they identified those that himself in that page five sixty  excerpts of record that's their twenty six a disclosure where they identified calendars and agendas of meetings between clorox defendants and analysts in the spring of one nine hundred ninety nine and now if i those particular words and i want to clarify that that's not what we alleged if you look at page at paragraph ninety three of the complaint which is in the excerpts of record of pages sixty eight and sixty nine you'll see that th paragraph that alleges false statements in march of ninety nine by defendant johnston at the maryland conference and if you turn the page there are bullet points of categories of false statements one of the categories of false statement said in the april twenty second conference call and what defendant wrote and defendant johnston said in follow up conversations with analysts again the language describes a category of false statements where they're saying this is a temporary and transitory problem despite the fact that defense that mr musica and eighteen year employee manager of clark's telling us that internally this situation isn't panic levels and they're getting more and more bad news fact the district court agreed with that and said that her comments were not quite consistent with the internal knowledge based on mr music has declaration if you look at paragraph fourteen of mr music and declaration with existing knowledge and then he looked at the cautions that she gave there is one sentence in a conference call and she refers to the ten k which contains two sentences so we're talking about three sentences all together and you look at them and nonetheless he said there is no liability because this is the five ninety eight also because she spoke only a couple of sentences and provided an approximate time table your honor it is not the law of this circuit that one may speak apply to describe a future problem when you as a future situation is not being a problem when you know of current problems i'd like to go back if i the three other things that did not happen between the time that the complaint was upheld in its entirety and final summary judgment was entered but first the first which we already talked about is that defendants did not even produce the documents that they themselves had identified as being relevant to the claim in the limited fashion that they sought a claim as being upheld the second thing that did not happen is defendants refused to meet and for just refused third thing that didn't happen is there was never any court hearing to clarify some modified scope of the complaint and the fourth thing that never happened is the district court is there to clarify well the district court upheld the entire complaint and upholding the complaint the district court talked about a set of statements made in the spring both by defendants and the analysts are one forty nine and then we get to the summary judgment order and all the sudden we're just talking about the statements by defendant there was a phantom dismissal of the analyst statements which appeared to have been upheld and prior to the date set for the hearing on the motion to dismiss the third amended complaint we filed a separate motion writing requesting that we have a hearing so that these issues could be discussed and there was never any hearing in the district court before thing that didn't happen if the district court didn't rule on a pending motion to compel to her including information that was known to the board whereas the motion is focused solely on whether the statements were in fact doesn't s impression i get from reading the record i understand that and i and i think it's an important clarification there's one sort of discovery which is in your honest words the whole enchilada that we pounded after the complaint w factual question as to what mr johnston said because it contains material not in his script that's one number two there are five analyst reports that contain that raise the possibility of meaningful discovery which we have i mean we quarters we're going to fix the problems in the process it estimates that's the pain level report from april twenty third chlorox will fix the problems in a price that's quote it estimates will take one year short term phenomenon that will take three quarters to work out possibility of meaningful further discovery to these reports suggest that we ought to be able to get the documents and then we ought to be able to complete dogma discovery and take some depositions all respond to one other thing that was our youth and that is that there was five months if i recall defendants as well as third party discovery and we're in the process of meat or we were in the process of that meeting and conferring with several of the third party third parties and when we complete all of the discovery then we want to take the deposition and i would like to point out  district court did not deny the fifty sixth application because it found any sort of delay and it's or any sort of lack of diligence and if you look at the cases that defendants cite as i think we've made clear in the briefs there are much more extreme example morning may please the court my name is jordan counsel for the standards three years after being sued for securities fraud and six months after the district court's order on the third consolidated amended complaint clorox filed a first brands inventory issue was temporary transitory and not reflective of serious problems threshold simple issues now the court asked earlier what about the boxes that were produced there were fifty well that would be on all elements of the claim we were moving on a very simple point the most yes about the thank you the meeting contrary yes what is your comment on that's correct there is no su the court said the plaintiffs one of the whole enchilada they want to hold restaurants they wanted everything i mean what did they ask for in that brief opposing summary judgment they didn't say we need another month to depose merrill lynch and supposed to clarence they didn't say that at all what they said is we need we need to have our opposition briefs continue to do they continue until forty five days after the end of all discovery any clorox employee and and to prepare a deposition notice takes about five minutes maybe ten to serve another day and why didn't they do it tell us exactly why they say it was to  back in april with a return date of may that's coming just in opposition they asked for more time we agreed to it we gave them an extra few weeks the hearing was kicked back months and months went by and what we see in their affidavit is that they were that we heard about their motion to compel defendants are required to produce relevant documents responsive to each request not just a request related to the summary judgment motion that's general we have an opportunity to test plaintiffs also argue that they did identify meaningful discovery and we heard a little bit about that this morning we heard about a plane weather report we heard about in the papers we hear about other reports and one report had nothing to do with our motion for summary judgment the paine webber report had to do with a different meeting if the meeting ever existed it was not the march fourth excuse me march third never a lynch conference it was not the april twenty second conference call if there have been a meeting it was something else something that was not compelled by the by the court as meeting the reform actually stand or something we weren't moving for summary judgment on so it wouldn't justify any continuance thanks us also argue in their papers that restricting the case to the two statements is too narrow that they didn't have a hearing in front of a judge how could they figure it out well it's crystal clear doubt about it at all so that so that point just can't now say this was a state stanton dismissal the court said these are the only two statements that meet the reform act requirements no other no wonder statement pointers point to well the size the fact that they had months and months and months to get it there's no reason to think that that report contains anything essential to opposing summary judgment the only thing they point to is a statement that says that that clorox said it would be eighteen months eighteen months before the effects of the first brand's inventory practices would be eradicated well that's exactly what point this claim from the market is anything if you would completely undermine their case there's nothing in that report that would that would lead anyone to believe that they could find any documents or any additional opening griefs so it was only in their reply brief that it first comes up and burlington northern actually shows the great contrast between where you can get a continuance and where you can't under sixty s discovery had taken place and the factual issue in that case is what has grown into northern carrying and its trains that was the issue to dangerous and hazardous what was it carrying in its trains the nice circuit said well how can the indians ride no one early in the world than is carrying in its trains without discovering here we have the exact opposite situation we have a lawsuit brought under that statute that has the strictest pleading requirements the accusation is that we made public misrepresentations not secret not secret misrepresentations they've been private or secret misrepresentations to be no case at all because it couldn't have affected the market and instead of being a lightning quick summary judgment motion this was three years after they filed suit six months after the court ruled on the motions to after you file your motion for partial somebody's judgment and judgment on the pleadings they sent us a letter about that we said were available on september fourth and there's a lot in the record about this they call they weren't available they talk to temper thirteenth we said declarations one from the lead plaintiffs who had no knowledge of what statements were being made and again shows a misapprehension of what the issue was one of summary judgment motion was all about other things and we heard a little bit about it today panic reporters at trial the judge allowed the newspaper stories into evidence reversed abuse of discretion to allow that inadmissible hearsay the residence been followed by numerous district court hearsay evidence now what judge conti did she didn't find the precise statement transitory or temporary down the difference that it was an answer to the last question and the april twenty second conference call where karen rose said that clearing out the inventory would involve a slow bleed and would be a year long process approximately plaintiffs now argue that that statement was in their complaint and we heard this morning well statement reform act has standards that say you've got to tell us what you're accusing us of say what exactly not we'll get to it eventually it's something like this so the statement wasn't in there and under kaplan versus rose you can stop there statement not in the complaint and that can be the end of it but even if the statement does come in we still have the safe harbor and we still have that the speech cautioned action and there's no dispute as ju wright alluded to this is a forward looking statement the statement it's a slow it will be a slow bleed and would be a year long process approximately in answer to a question at a conference call was the killer word of proximately karen rose did and she said we're going to be making statements that are forward looking under the reform act or however she referred to it take a look at our ten k files such and such date specific documents there's a paragraph in there circuit you can look at not only the statement specifically referred to the caution specifically referred to but other cautions in grady documents i think is the phrase the court uses such as filings well cautions that's the way you get the protection that congress meant to give you in the form of plus the cautions repeated in other f c c filings would protect that statement and we heard well knowingly false in the court found was may not you know the trends may actual trends predict or materially from our forecast that was the sole caution the apple case was a product defects case actual trends could differ our case between two companies and the rest can be space when you have to integrate two different ways of doing business there were paragraphs on merger acquisition risk not it's not you know past performance  i'd like to go back to an important point related to the fifty six after action this is not a case about two sentences and a question of whether or not two particular sentences with particular exact words were made we know complaint alleges false statements by defendant johnston at the march fourth marilyn you know this conference and the complaint alleges call statements hi rose in the april twenty second conference call the complaint also allege follow up discussions between johnston and rose on both those dates and the district court upheld a set of statements and the district court went further the district court said that it was clear there was no question that there were follow up conversations that both rose and johnston follow up conversations with analysts and then left and rose in her declaration at mit's having follow up conversations but district court said there's still no question of fact about what was said and beyond that no need for further discovery because this isn't page five ninety nine of the excerpts of record because quote both claim to have said nothing different close quote because the defendants say they didn't say anything different well already even at this early stage of the discovery there analyst reports that create the problem was being described in a very different way than the way it was being discussed internally in terms of panic levels and in terms of bad news that was growing every day that's the discovery that we should have gotten i also would seventh time in the conference call that she quantified the first grants inventory problem it's not the only statement that was made there were seven different statements and we've attached the text of the what she said to the back of the reply brief so that you can go through it yourself we laid out each of the statements in the opening br convey substantial information about factors that realistically could cause results to materially differ recess before hearing the last matter on challen