was from the very language users this is fact a lot of this by itself this by itself this fact alone which were a series of pieces of evidence to show that we met the science or  were fired over the failed launch of another product finally when this product failed and indeed it failed there's no question about that once again these gentlemen were fired were you have a situation where your predecessor fired where you expect to be fired if something fails and you are indeed fired when it fails that shows a conscious state of mind or kind of motive that is more than the simple everybody likes to keep their jobs everybody wants their s let me move on to the question of the amendment each of your honors has written opinions dealing with leave to amend complaints and complex securities cases and each of you have been part of panels that have allowed amendments on various different complicated fact patterns i submit here that not only do you have most all of the situations that were in those cases that are cited in briefs and you ruled on what they they're all present here and i'll give you an the if there was no such thing as an opinion cause of action dismissed the case after the dismissal of the case fate was decided by the favor of his regions was decided by this court which found there is a cause of action for an opinion but you had to show that the defendant subjectively disbelieve the opinion that was a test and the case was remanded for the mended complaint to deal with the new standard set by the second circuit as it would happen the second that the case was dismissed again by the district court on the amended complaint sent back to this court this court affirmed under the fait decision and then the case was sitting in front of the supreme court on the serve when the supreme court decided on th a week after it decided on the care where it rejected the concept that you were required to show the defendant subjectively disbelieved his a pet his or her opinion the court also said we're remanding fetus back to the second circuit back to the district court in light of our on the care decision because fate was no longer the law here on the care was decided after drudge per se issued his decision on the motion to dismiss in his motion to dismiss he were alive entirely for almost every every decision on every alleged misrepresentation an omission as well as for every question  fate if you look at the opinion his counter balancing potential more compelling findings for each and every one of the deceased's arguments that we made for each and every one of the allegations of false and misleading statements other than three o three which i'll get to was based on there's no reason to believe defendants didn't honestly believe that that this wasn't honestly their opinion that this wasn't their opinion that they didn't believe it that this wasn't their belief every single decision on every allegation the claim other than the three o three allegations were based on the court's use of fate and the failure to show the defendants subjectively disbelieve their opinion again that's no longer the law we went to judge to say instead this is no longer the law judge to say didn't care and would not allow in the men to complaint were not reconsider his opinion in light of the  the statements from the company or largely that this is a good product and it's going to take the market by storm those weren't the opinion those are the opinions and into this case are the product is selling well the product has been accepted by the public we're up to we're doing exactly how we've projected we're going to do and your honor you know well isn't that a fact it is a question of we're doing as well as we projected we were going to do what is in the complaint about what their projections were what we put in what we have added to the complaint is we have statements that show the information that was in an article like came out during a class period and very important article came out there in a class  that said they're not doing well we're turns are outstripping sales the product is a complete failure of the detwiler fenton correct this is this what the whole case is it to me about and most of the other stuff i would wouldn't give you the time of day if it weren't for that report and there we're seeing something that a little bit different especially in light of what we now know which is that that report was in fact factually accurate and that's what you  turned out to be the case that's exactly what happened here with the detweiler article the defendants after it came out virulently denied it was racked and undermined it in every way and of course it was nine hundred fifty million dollars correct at the end of the day thousand and thirteen that a more compelling inference can be drawn the defendants had since sincere confidence in the accuracy of their internal metrics showing that sales of the devices were meeting foreca people twelve two thousand and thirteen six k has four factual statements but putting aside the six k what about the state of the press release that they issued that said the  t while a report is not just wrong it's a fraud these people are deliberately trying to undermine our stock price and they're saying false things number one and yet we now know retailers was had had data showing that exactly what the report says it doesn't say anything detwiler talks about quote several retail partners mr dunham worked wire that z ten returned said to outnumber sales of arise and so what is what do we know from the press release that blackberry does in response they call it detweiler and they say can we get a copy or report what's it based on detweiler refuses they then go out and they collect data from retailing carrier partners about return rates blackberry doesn't have access to return rates blackberry under its revenue recognition policy the store and returns them verizon wireless issues a statement saying that that is not true so we've got a report about returns have verisign outstripping sales which i don't think it's possible that you prosecution there is a sentencing submission by the government in which it says the information about sales and returns quote may not have been accurate with respect to the major smartphone manufacturers over sales overall sales and returns but where we are here on the grant of a motion to dismiss and the denial the motion to reconsider right and so we're looking at just allegations of the complaint particular renewed in the hands delegations based on developments reported in the press that appeared in the proposed amended complaint and judge chris a denied  complaint didn't succeed where the old one had failed or that would be futile to amanda what have you so why wasn't that an abuse of discretion given that there had at least been some factual development that proposed amid a complaint look  different he gives no reason we have a strong policy in favor of allowing amendment even though some time had passed we've allowed it after judgment in other cases maybe you can help me understand better why that's a defensible position there certainly is a liberal in support of a rule fifty nine motion the proposed amanda complaint is submitted more than forty five days after judgment and more than two months after that information became information that became public doesn't change anything about what black berry said or knew he doesn't he doesn't say that he doesn't say it i agree but are we going to and i shouldn't well you can send we can send it back and say you need to take a look and explain if you think it's futile to allow to man for example i think the court can look for itself and it can see that this purportedly new information doesn't say anything about what blackberry knew you can on c n n turk they don't have a single confidential witness i mean black that there are thousands and thousands of employees that have left blackberry during this class period they couldn't find find one disgruntled employee to come up with any evidence to support it there isn't a single internal document number two there is no known trend concerning sales of black berries newsy ten device the first the annual report for two thousand and thirteen is filed is covers the period through march one of two thousand and thirteen the black berry device is introduced in the u k and in canada at the end of january and the ending of february it's not even available for sale in the united states until after that fiscal year has ended it first becomes available for example on verizon on march twenty eighth actually the day of the earnings release for the prior year and it's only for sale for a two month period as of the time of the q one two thousand and four so this is not long enough for black berry to know of any trend and again they have to show that the speaker actually knows what he's saying is and is not true and what does mr hines the c e o say on the earnings call on june twenty eighth is this quite specific that he doesn't know what it's going to turn out to be he says and this is in the joint appendix four seventy nine and a four eighty six we are still early in our launch cycle and have yet to see all black berry ten products and full deployment of black berry ten contribute to revenue it's a very volatile market so many dynamics going on here it's really really hard to predict even with a three month outlook where we're going to be at what point does the six tumors have embraced the problem he says  when the product is being rolled out and they are getting a lot of positive feedback about the new operating system if you look in the tech press there is a lot of positive feedback if you look in the standard media report it's about what is happening with sales at the same time you've got the detwiler fenton report you've got an article in the new york times about how sales are up dramatically at frys and so there is a lot of positive comment again all that black is shipping devices and the number of devices that are being activated there's no surer way of creating a negative trend than for a producer of consumer products to come out with a statement saying yes the product sucks no s it seems to me quite remarkable to insist that companies take the most negative spin about their products for the sake of telling investors over there may be a bad trend here in a way that would sink the product and the stock right and the sports case was quite clear that a corporate officers not required to refrain from being optimistic about the prospects of his company's products but at the same time the company  its quarterly and annual filings has pages and pages of detailed risk factors saying we've had losses we've had other devices that have not succeeded we are in an intensely competitive market current economic uncer may require us to reduce our prices we may not be able to forecast correctly what our sales are going to be they say all of these things again let me go back to the detwiler fenton report and the press release that came after it i think the most telling evidence that there is no c enter at minimum is that blackberry says we are going to report this to the u s and the canadian regulatory authorities and what do you what do we all think what do we all know the first question they're going to ask when you report that you believe that detweiler fenton's report is false they're going to say why do you think it's false and what they're going to do is they're going to share with them as they s in their press release the data that we have collected from our retail partners and carriers that show that the return rates are in line with our forecasts so there is absolutely no basis in this record  again there isn't a single confidential witness there isn't a single internal document that is cited anywhere in the complaint all we have is a lawyer sitting at a keyboard and saying with hindsight they should have known it in earlier time period  it makes a good press for a waste but who knows what they ever did that's a new fact he decided to offer here that's not in the complaint not sworn to it's as a matter of law similarly the entire discussion about the plea the rest of it in the actual denton trial that's not in the record because all of that happened after all this briefing was closed what happened in connection with those proceedings what facts were duce and where they say they may have been incorrect well they may have been incorrect the other direction they may have been incorrect by understating how badly black berry was doing the government just didn't put in the plea agreement what the exact numbers were that's what discovery is for not for defense lawyers to calm the oral arguments on on appellate motions dealing with motions to dismiss and motions to amend and argue facts that don't exist anywhere in the world some of those arguments might have shown up in the district court if the motion had been made other than in at the last moment in a reply brief on the motion to reiterate to be to be fair your honor with respect to the timing was required was to ask the court to undo the judgment that's what sci fi c says i believe to have your honor to on that panel that's the first step you have to do it on the rules fifty nine or sixty that's not the same as saying there's a new law that that had to be a rather that had to do with showing there were new law that's the standard other than the throw away of whatever justice allows what we did was move with respect to the new law which was i'm the care clearly judge course a relied on the wrong law and he were alive then fade from most every position he took in his opinion fate was overruled by on the care by the supreme court when the defendants came back and said that won't work on the careless talk about science or this that and the other thing which they made the futility argument not the failure to make a reconsideration motion correctly they made the futility argument we responded with new information that by the way was less than a month old when the court rendered its decision the stuff came out about that while our and the debt in action no earlier than february twenty sixth and all of the information necessary to kind of put together a claim and pull together the little pieces of what happened there weren't available until march twenty sixth which is alleged in the amount of the proposed amended complaint well that's after judge grease a already decided the motion and it was a few days before we needed to move reconsideration under rule fifty nine there was no time at that point but what we did do is give the judge a proposed amended complaint there are several cases by this court and by your honour's where there was no proposed  complaint provided to the district court so he could look at it in the solar utility there are cases where the court looked at issues that had arisen like a change in the law where you didn't have an opportunity for the juda cation on the merits so you could correct the defects that might be in your complaint which was the situation here there was no opportunity there was one amended complaint that was looked at by the court that i'm in the complaint was the only one the court ever considered it made its ruling and we attempted to change that  supreme court after changed the law and made it clear this is how you allege an opinion it's said we're not going to deal with us now we're going to remain and send it back to the trial court where the complaint should be amended in