court specifically said there we agree with judge friendly speaking for the court of appeals incurs still that the might formulation is too suggestive of mere possibility however unlikely and the to be made but the supreme court also made it clear that step wasn't actually issued that was they were saying that based on an application of this standard in the substantial likely standard that might just and the idea that the safe harbor would save defendants from ability to properly use because we're not challenging actual results aha you said you would come you make a one million dollars and against the full background of all the information that was disclosed and see whether it would have significantly alter the total mix correct yes i would agree with that and  well right and then so i guess given the relationship among these different metrics met income depreciation and amortization  bit and then capital expenditures that are disclose there and in from the financial information from a company that's presented historically how would management hide value by disclosing it by failing to disclose free cash flow i have a lot of trouble understanding i understand why a buyer and or a creditor would really want to see that number and presumably they did but but i but how do you hide val a lot of other line items and the truth of the matter is and to your point yes even you have rules but there's also a ball the off wall federal and state law that says projections are the most important thing and particular we have rulings like from ohio nicci versus the we have rulings from delaware transfigured like merrick capital not i'm not asking so much about precedent because i'm not sure that this is really governed very specifically by precedent that could follow but i'm trying to understand the logic of your position let me just say if i could test a little bit further in the proxy statement you're as i understand it your theory is we're entitle to basically look over merrill lynch's shoulders and make our own evaluation of the fairness of this price the proxy statement says on page thirty two dollars that the merrill lynch investment bankers reviewed certain internal financial and operating information with respect to business operations and prospects of the company burnished who were discussed with us and discussed the past in current business operations financial condition and prospects of the company with senior management would your theory allow you to argue in the next case if we accept this here that all of that information also needs to be included in the proxy statement and if now yes your database say we did this discounted cash flow yet they also say we based our opinion on all this information that we got from management in these internal documents which presumably are treated as pretty confidential right yet so let me back back up because your real question is why discuss that matter it's the only metric that tells you the job of that's not my question i asked my question the question  example the change in working capital you're also missing the corporate tax rate and you've got all that you've got that kind of information from the last two years correct  and let me pick up a bunch of hamilton's question what about the business segment projections your argument seems to be that you're entitled to that information because merrill lynch in conducting its financial review reviewed it why doesn't that argument lead to the concern that judge hamilton posed wouldn't that lead go down the road that anything they looked at would be required to be disclosed in the proxy statement if you know i think it would have to provide a summary a fair summary i'm not suggesting but tell me i'm talking about the basis of your argument for the cash flow projections you said well no we argued that that's a key metric so put those aside but your argument with respect to the business segment projections the reason you allege and what you argue is that merrill lynch looked at those therefore weren't title to look at out there on the distinct difference between loss and transaction because if you and you seem to be arguing here that you've alleged transaction causation but i'm not seeing the allocations that would support  causation you have to have economic harm caused by the alleged omission incubate so we allege that the company was worth more than he got so for and if they don't provide the information to show if their cash flow is his financial advisor in just one of three valuation brain works is to support a fairness opinion which is self was one of eleven reasons that the company's board of directors recommended the merger following a four month option process that resulted in a seventy percent premium to do the shareholders and was supported by ninety five percent of the voting shares against this context palings cannot possibly plead the projections use every day in deciding what to disclose fortunately it comes together with a group of those who are principle is it that or his application for example is your reality determination it is never made in a vacuum there  no per se will requiring the disclosure projections shareholders are entitled to a fair summary of the financial advisors work words routinely recognize that section forty eight is not required disclosure of every input either considered by the financial advisor or required to recreate the financial advisors analysis or required to make an independent determination of very value here we had ten years worth of other projections disclosed and those projections included net income and even earnings we know that other courts including the th circuit have considered net income to be more important in cash flows and transient the case here tell us counsel says the recommended in favor of the merger not limited to the financial analysis of the various opinion we have twelve pages summarizing the background of the auction process that the company ran here and it against this context and lever cash flows we changed that the this court has within its means the ability to look at what other information was disclosed what kind of process was wrong on it and find that the disclosure of free cash flows in this contrary many involve the disclosure of factually inaccurate financial information and stand for the unobjectionable proposition that a false disclosure can be materially misleading when for example the disclosures are false we identif omitted and other cases stand for the equally unobjectionable proposition that omitted information may change the underlying factual accuracy of what was disclosed for example you know where there are two sets of board or the financial advisor is is conflicted or or the orders involved or special committee was needed but not created as in th sort that the the rule of the principle here is that if there is something wrong it if there is something possibly put it is wrong with the total mix of facts then the court can apply p s e and a determination  materiality in this instance however the event complaint doesn't know if that any of the defendants disclosures were actually false or the disclosure of an overt of cashflow projections would actually call into question accuracy of any cash flow or business nd projections have been found that even serial under these circumstances this was an option the directors did not continue with the company their incentives to maximize for terms  microphones are working it's a little tough to get in a word edgewise given that all of this in from other information was being provided the project projections of net income  we're talking you're already providing a lot of pretty detailed projections there with those other measures why is what is there special about leverage free cash flow that would lead you not to disclose that what you're o considered it and they've rejected it a specially against the backdrop of the kind of allegations that are made here and a total bit mix of information that that veteran had this was his proxy statement but the court affidavit says in a number of places that these omissions rendered the proxy quote misleadingly incomplete and i wonder if you might address those allegations sure arguments in briefs and submitted affidavits they risk turning it into a summary judgment motion but that didn't happen here oh i don't think you can ignore the each of the data sure and i suppose that that other summary incomplete then every omission would be grounds for section fourteen a coin and you compound cases rejecting this claim of pages four thousand four hundred and forty five for brief but maybe going back to your question just hamilton the other aspect david both both sides in this case are denying that there are per se rules being applied here and seem to suggest the courts ought to stay away from them the the cynic in me suggests that's the rule of full employment for securities lawyers in these transactions whereas more specific regulations on disclosure from the  where is because if you if you put more language a leader over correctly you're under correct because you will never be able to get your arms around the entire universe of potential disclosures this is the best that you will true where vectored ran a four month long competitive auction process and there were also ten other reasons that the board recommended the merger and therefore as the court in tra you yes i think you really what it boils down to is let's use the correct standard of much reality on a motion to dismiss which is whether information is the material as a matter of law or not whether it's material as a matter of