there never would have been a merger and it would have been reasonable and withhold their consent here if they knew that that mr abbe one of the defendants also had an interest in the rock or thing you know the controlling group that defendant prominent will be receiving additional directorship after the merger of another conference a public company controlled by the controlling group as a quid pro quo the defendants misrepresentations and omissions about these facts that we have decided putting two partners contemporary machines burlington coat factory that says if you fail to file a fifty six dollars vs a david that itself is enough to find a district court need not allow discovery for response to a summary judgment motion so correct me for mom i don't think there's any case were reversed where you fail to file a fifty six today but not putting something in your brief not putting something in your opposition to fifty six point one statement and af davit that this will be the st time we're ever saying that that's an abuse of discretion can you denied and then followed by no discovery and no permission for rule twenty six full twenty six discovery this is a very unusual set of circumstances which defendants tried to downplay how unusual this was six papers if they just interpreted it differently and i don't think there was anything untoward about that the idea that we would have to be in a position of burlington when we haven't had any discovery and at this point the only decision we have mr bernstein control over iraq more was obviously disclosed the controlling interest in iraq more and the majority of the f b c the former holdings board was still disinterested even with this indirect interest so it was the combination of those things that would just work to say that this indirect interest of mr i begin to those circumstances would possibly affected your client's decision here so can you if they had known that there was another director who also wanted to have an interest in maintaining the rock with the company that would have been to music in fact for them and they this is not a case where you're dealing with  whether it may have made a difference we know that it would have made a difference we know that the plaintiffs here has the ability because of their over seventy percent interest and requirements of the doing the agreement to prevent this merger from going forward and so if they had no they in their mind mr adie was a completely independent person they had no knowledge that he was connected with st thing mr bernstein and iraq or node if they had known that that would have been an additional fact and maybe it would have caused them to continue trying to gauge the connections between mr rockmore i mean the st name and the i don't know but they were they said that it would have caused them not to vote in favor of the merger and i think on some judgment when you haven't had any discovery and we haven't been able to get into anything about the intent of the parties or whether there was an expectation that they were going to an we're in this case in that case we had prevailed on a motion to dismiss we hadn't had the opportunity to conduct any discovery at all and so it would be fundamentally unfair and against the federal rules of the whole minute we were able to submit evidence we really had of taking option to do that because we were really focused on the fact that we had a discovery that we should be entitled to discovery but we thank you very much  rather than fifty six dollars days require certain steps in terms of showing what assets have been taken to undertake discovery so far why the discovery is relevant and was discovery will be taken in order to show the relevance to the survives and so far as that allegation is concerned it should not survive with respect to mr perlman but i'd like to step back more generally with respect to materiality which is council presentation focused exclusively on her own client's perspective with respect to the merger and why these various non disclosures were material i'm sorry my speaking over the cork no no go ahead go ahead and i think it's important to note that the materiality test here is not a subjective test with respect to her clients who as you point out were insiders and had a very close connection to this company but it's the materiality and koreas with respect to a possession and had no previous opportunity to develop the record with discovery unquote directly from the miller case at three o three and here you enter as your honors know with the relevant element  of clean and how could this possibly prove the answer without the opportunity to review the defendant's own documents and to take their depositions and to really get into what what they were thinking you know once you've established as we have  this discovery was so out of line that there was that there was a motion even filed and fact the court just determined that it wanted to stay on discovery and that use this alternate was that it was going to be paid off soon after the merger and what the f c c disclosure says is that is going to be a a liability of the company after the merger that didn't mean it didn't say anything about the timing for how long it would remain a liability and mr bennett reasonably believed mr bernstein that soon after the company would take the cash that mr doing revenue of over forty million dollars a year on a regular basis and so it would be irrational for a public company that had access to public markets to continue to hold this you know there was only paying interest at eleven percent a year