like to focus on two prominent ones this morning st defend is false and misleading statements relating to unions premium rate increase request of the states and nd defend its misstatements in omissions concerning  loss ratio the key metric by which investors were told they could regard the adequacy of use reserves now the premium rate increased ques throughout the class period the defense repeatedly told investors that those rate increased requests were going well and that you don't see experiences in that category continue to be consistent with this his storable experience is that it factored into the reserves back in two thousand and fourteen i'm going to be just a couple examples seventeen quote key messages we feel really good about our rate increase strategy and quote in fact they told investors they were probably even going to exceed the estimate that they had put it three years ago none of that was true runners the complaint alleges that by the class periods beginning in october two thousand and sixteen you know had already tabulated results contrary to its historical experiences in twenty five dollars states reduced amounts for being branded there were longer delays than expected and there were even outright disapprovals and rejections those factors affected fifty three percent of you homes long term care premiums and history so i appreciate what you're saying commute just walk me through so in october of twenty six teen i think that did you point to that or the descent you pointed to the december statement i'm sorry in december ok so just explain to me how i mean right on top of how we thought so they think they're making progress are you saying they weren't making any progress because go ahead well no i don't know that i'm not saying they weren't making any progress i'm saying they were not making the progress that they had assumed they were going to make big made assumptions in two thousand and fourteen that they were go when they went to the states historically we have gone to the states and we've gotten x all right we asked for ten we expect to get eight and that was our historical experience what happened is they were going to that state asking for ten but they were beginning to date they were getting six or that they were getting rejected outright or they were getting six and it was delayed by nineteen months or twenty nine months that's what made that statement false when they said we're really right on top and remember they're speaking to investors we're at the pleading stage whether investors would have regarded that statement as a material also it is something that what they do to me were they provide i mean at least they claim they were providing all the underlying data in their reports and they will no you can say what you were going to say i interrupted go ahead well they were providing underlying data that's true picking and choosing but again they weren't the overall the overall picture of how those rate increase requests from going was not getting that it least in my experience executives always make their i mean they say look this is what we think we're doing we're providing you the underlying data and then if they didn't say we were our two thousand and fourteen model is proving out to be true i don't even think they referenced the two thousand and fourteen model in any of the in two thousand and fourteen consistent with our historical experience now i want to back up just one minute you said corporations say things like that all the time that's precisely what the district court here thought that this was mere corporate  court in bridgestone as every other circuit in the country knows that in securities litigation cases context is key and what was the context here the long term care market you know and its peers every everybody the exception apparently you know was being bushwhacked by hundreds of millions of dollars of cost from these long term care policies that they couldn't get out of you know reassure d its shareholders that it was different in general after it was different than genworth it was going to smooth over its reserves by going to the states and getting those rate increases that was the context and we know that a matter of all i'm sorry to skip your nd issue but you mentioned general electric and i i didn't understand this argument in your brief as well as maybe i should but i thought they were different than general electric in the group policies in other words they had eighty five percent group policies fifteen ahead i'm sorry that's quest but alright but i will say they said they were different than g e but as we know they admitted to the class periods and to tell you the truth are much more individual policies were not that that is the key metric that you should look at to judge whether or not our reserves are being pressured so october two thousand and sixteen started off with a bad number it was ninety three eight percent but the defendant said that was basically a one off it was attributable to a one time event without that the ratio would have been in the range then they have three straight quarters where that the numbers hovering at the high end of the range but certainly again it just in thirteen dollars again the defendants blame it on a one time event and they can tell investors quote we're encouraged that the underlying claims experience was consistent with historical norms but despite that encouragement the next two quarters the loss ratio remained up in the ninety's ninety three percent in ninety six percent and i would ask your honour's to please take a look in the record at page id three hundred and thirty one through three hundred and thirty four specifically paragraphs ninety two through ninety six and you will see the following true numbers that illustrate what was truly happening with the underlying claims experience at the time to mention four things st by two thousand and seventeen unum was stuck with twenty three percent more individual policies then it had assumed it would happen that point twenty four thousand policies that couldn't go away over the same time period you know as an actual incurred claims in that group were two hundred and fifty seven million dollars hi quarter of a one billion dollars higher than the underlying assumptions rd unions claims duration that is how long a benefit would last how long the policy holder would remain in a nurse we're in a dog's care the claims data that came from the reset in two thousand and four precisely just strange that is exactly what happened again in securities litigation context even literally true statements can displayed that number given every three months was literally true that's fine but what they did was they dissembled or they omitted what was happening underneath that number and we know about andrew i should provide all of that and i thought they did provide enough of that but irrespective of that what what specifically requires them to provide all of that because in so from our we said if they provide accurate historical data it can't be the basis of a calling agreed but what there's also another securities litigation axiom in that is having deigned to speak on a subject they have the duty to speak truthfully and completely bush having deigning to speak about it underlined claims experience using the law for racial was true and accurate but they also address the underlying claims experience they can be with say things like where a car is debbie underlying claims experience is consistent with historical norms i've just given your honour's three examples of where those underlying claims experience is deviated wildly to the tune of two hundred and fifty million dollars from historical morphs and i would like to reserve the rest of my time for rebuttal please you certainly may thank you thank you are an opportunity for a valid klein a mission of evidence you can provide what is accurate and not provide an information that is necessary to understand the general my colleague is correct that if there is a statement made that is misleading on its face objective lee misleading in the words of this court nominee chair then there could be a duty to disclose facts necessary to understand what was misleading but what this court said and done dolly is that there must be an implied misstatement and what was said it can't be which is what mr daly has argued to the court a few minutes ago that additional data would have been why isn't that the standard that governs all mission client or judge grants that is this there going to be the standard is tied back to what unum said so there must be a substantial likelihood that what you know you did say on the subject was misleading and misleading in an objective manner as this court ruled and i'm due care and the problem for the plaintiffs year as was alluded to in the questions this morning and in regards to the rate increase claims unum said what the rate increase assumptions were and what misleading the objective numbers were there for investors to make their own judge well what about just looking at a couple of the claims and in the compliant itself and you know for example we've got judge worker didn't need to reach because the statements were misleading in the st place but the data that you all just referred to as alluded to in our brief are data from unum statutory filings that are calculating statutory claims under versus the guess was admitted to overlap in certain areas and if that's the case why do we get to do this on a twelve isn't that a dispute of material fact that needs well no we're place so whatever data the plaintiff points to was not required to be disclosed to make those statements not misleading if we were to even get past that it was plaintiff's burden to point to an orange and compare it to an apple and plead facts as to why that comparison is a valid comparison what you're either just alluded to or not allegations in the complaint if you look at the their briefs it's citations that the transcript of the motion to dismiss that that gives the district judge the ability to say i don't think those are assigned things so i'm going to dismiss the compliant doesn't that mean that there is a question that at least needs to be explored in discovery w whether there was a duty to disclose but what the place this that you should have disclosed is not that your got by me on children deviating from your gap financials is that your statutory numbers were somehow different that what was in your gap financially and eighty five percent at the end twenty seven so there's nothing misleading about what you know actually said on the subject and while the plaintiffs say the context matters the context doesn't change that in the jr marketing case general motors statement that we're making substantial progress funding pension liabilities was found by this court to be puffery the same holding applies here with respect to the l t c block composition composition my friend this morning  d that everything unum said about that l t c ratio was true what this court instead repeatedly as we were just alluding to when zalewski in jail in our marketing in ford motor company that truthful statements of historical facts are not misleading and don't give rise to a duty to disclose other details whether they be of interest to invest or not and i agree with you that it was a comprehensive district court opinion i'm struggling a little bit with what appears to be the standard that was applied by the court looking for example you know my issue is this is a twelve dollars to six dollars so we're right at the longer time period than originally anticipated speaking to the accuracy the district court was alleging the accuracy of the statements but then it went on to conclude this statement is not particularly revealing because of its ambiguity it very well may be speaking of how quickly state regulators were addressing its right request not whether they were actually approving or rejecting the request so this statement tracks what you know whom had been saying well you know i don't understand it the position of a judge it twelve the six to look at a statement alleged in a compliant and to say oh well i think this is ambiguous and i could have meant something different so you didn't state a klein can you tell me why that's an appropriate way to address a motion to dismiss under twelve b six judge writes i don't believe that comment from the district judge was was important or relevant to its conclusion the district court concluded that the statements that you know did bank what it did say was it misleading it is true with then it what somebody else may have interpreted it but that's not what were relevant to its decision the decision was the statements that were made were not misleading that ends the duty to disclose issue that my friends have raised as the basis for having to disclose all these other facts there's a very unusual securities case by my colleague said this morning i want to emphasize two facts that are in our complaint both of them are true that's my securities fraud case what he didn't say this morning or get to it all was what his fraud and how those truthful statements never left have some basis of repairing so young and what the place just needed to do in that regard as this court rolled in referencing what judge grants she makes in my mind a lot of good points and so go back to the standard st nd and just walk me through is it truly i mean i guess we should think of it as a twelve b six is that what what it was but it seems to me we have to review it against the backdrop the twelve b six of the p l s p s l r and a and how so how should we take those statements because the p l o p s l r a says that we have to that the defense they must specify each statement alleged to have been misleading and the reason or reasons why the statement is misleading and state it with particularity facts giving rise to a strong inference and i think you are getting at this what is strong inference meaning in that context when you are viewing it against the twelve the six where you take all inferences in favor of the pointed out and we put those together in your mind so i think you have to separate them ly at all of the allegations and determines whether or not thanks st produce the powerful or cogent inference or fraud then only if you get past that you consider all other inferences from the facts  record when it comes to the chase just of where i was going so what seems to me your your argument is a the statements were false or anything misleading but b even assuming they were the plaintiff never over overcame the higher hurdle some of their claims are subject to an actual knowledge the answer standard as we argue in our briefs virtually all of their claims are subject to such a standard because that's all soft information and the like but they don't even argue that they've met that standard and i see my time is up lest the board has increases in support those are the same that we're using for reserve adequacy under both statutory and gap so that's where the similarity is their nd point counsel says that i admitted that everything you said about loss ratio is true it is not sure i said that the hard numbers in isolation once every three months were accurate i said the underlying statements that they made repeatedly that the claims that they had received those state rate increase approvals it's quickly ask historically expected they think those increases that they did get have been phased in over a much longer time period than they had expected and happens to be dana i argued that case in front of two of the three judges sitting here today and in that case we had top executives talking repeatedly to the market about obscene segment of their business in that ra strong interest of their standard we have the same thing here we've got mckenney in a garret to top executives at the company both men with long long experience and long term care close lock experienced repeatedly speaking to the market or are glossed over there are one offs there are aberrations and yet at the end of the class period when they do have to come clean they admit that the rate increases were taking longer than expected they admit that matter we get past the motion to dismiss and we get to move on to discovery summary judgment trial you're honest you know i think taking all of our allegations as true incredibly in the inference is in our favor ok thank you mr daly again thanks to both of you for your arguments this morning we certainly appreciate them and we will take the matter under advisement this being the only case we have on the