this is an appeal of an order from the district court below dismissing our complaint with prejudice or complaint alleges violations of the securities laws under section ten b and rule twenty five dollars promulgated there under that's not the case here plaintiffs actually pled see enter with sufficient particularity and what's even more rare about it is that we we did it based on solely motive and opportunity allegations insider stock highest point when the that the majority of the stock sales took place actually and we also pleaded adequately pleaded at least one category of false statements related to enrollment violations  o the district court entered judgment against plaintiffs solely on the basis that we failed to adequately played last causation which he recognized is a rule eight pleading standard briefing is the statement that you can look at the last thirty years all the major studies pancreatic cancer u s based studies i want to make that distinction survival rates between fifteen to one thousand nine hundred and twenty months that's i n the care of the supreme court said that a fact is the thing done in existing this statement here is a statement of fact it's not expressing any sentiment and a belief it's not couched in language of belief opinion i think that's a problem and the reason why i think that's a problem is that major is simply an adjective in this statement you could replace it with large or any other adjective and it automatically transforms that apparently into a statement of opinion and i think that's a dangerous precedent to set that adjectives turn statements of fact in the stable when you have to say all adjectives but isn't isn't this one pretty important in this particular statement i mean you have to make judgments and evaluations to determine what pool out of the the studies on various matters in the world constitute the major ones that not all people would agree as to what constitutes a major study in the scientific field and i appreciate that i think the the issue that i have with it is that the bookends of the statement which are all the major studies and that said he wanted to make it sound definitive and absolute and one issue is that i think when you're seeing a state and about all of the major studies there are certain studies that you would have to characterize as major i think if you are saying all the major cities in america you couldn't exclude new york there are certain things you can't exclude and i think that it presents a statement of fact that the judge pauley shouldn't have been deciding at this point i think this is something you would exclude and someone else would include isn't that an opinion i would say it's i wouldn't say necessarily it's a matter of opinion i think it's a matter of fact and i think if you could have experts on both sides arguing for and against and that's why i think it's a it's an issue that should go to a jury rather than judge paul a just point that what he's doing is creating the in the impression in the part of the of the recipients that the fifteen to nineteen to twenty months is is what is what everybody said that's what that's what  saying i think it's worth not not everybody but all the major studies and so it creates some sort of tension in my mind between what is a statement of fact and what is a statement of opinion and i'm not if we do assume that it is a statement of opinion the other error that i think judge pauley made was he failed to credit our allegations related to insider trading that seemed a lie or positive statements throughout the class period in his st order judge pauley wrote that nothing in the complaint suggests even on information and belief that defendants publicly expressed opinions were different then or contradicted by their true opinions and there are some statements that i would characterize as opinions that we allege in our complaint but they are positive opinion statements show that they are bullish on the prospects for this drug's approval number but they're dumping the stock that's showing that they're bearish i think this absolutely does cut against their opinions and these allegations should have been credited but he didn't credit them at all and on their the law i don't see a reason why that was just very quickly i'm going to turn to lost causation i just have a few seconds left i think the big issue here is that judge paul he wanted the corrective disclosures to the corrective statement was the i mean there are two corrective statements that relate to enrollment but the final corrected statement is the major corrective statement which is the failure of the drug the whole thing and our position is enrollment is a necessary component part of this trial and so when the trial fails that reveals something about doesn't necessarily  review room it doesn't necessarily reveal that but i think actually analysts statements afterwards suggest that something may have been wrong with this trial given the survival rates that were reported and called for an trial had not met its endpoints pharmaceutical investors filed suit and attempted to convert a scientific failure into federal securities fraud this is a little different this case is a little different than the usual market going up and down based upon various disclosures because the plaintiffs here i mean the defendants here were selling off their their holdings are considerable holdings after these various press conferences  one could look at this very abstract way and say this is like market manipulation you know they they they knew how to get the get the price up so that they could sell and then the next time a study came in and there was a there was  and price drop they were back in there trying to figure out how to get the punch ups and they could so that's one way of looking at this case we knew agree i would agree that that is one way of looking at it your honor i think that it's very important to take into account the structure of this trial here and i think that the facts here simply refute that take on it because in fact the defendants were blinded to the study data throughout the entirety of the trial this was a trial of a drop of a vaccine for pancreatic cancer which is one of the worst cancers that there is in rome and in the trial began in two thousand and ten and the trial concluded in two thousand and sixteen and it is undisputed that throughout that entire time the defendants had no idea what survival data was coming out there so they were measuring in order for this to be ultimately successful i think somewhere i read in the papers that it had to be the survival rate by twenty percent so your honor that i'm glad you pointed that out that's actually a new argument on appeal it's not actually alleged in the complaint the phase two trial was structured so that there were two arms one but there was no control group there was a an arm receiving a high dose of the vaccine and there was an arm receiving a low dose in phase three phase three trials have entirely different structure can have very different structures and sizes this one had a different size by an order of magnitude by an order of ten and it had a very different structure h efficacy as well as safety so the federal regulations that the f d a has promulgated provide that phase two the different phases have different purposes so obviously we believe that the dismissal year should be  affirmed and i think i will i will start by addressing last causation unless the panel has another preference can i just ask going back to my colleagues question the selling of the stuff was that some evidence that the pins about the penya and if we treated as an opinion for the moment about major studies might not have been honestly held your honor there is no case that we are aware of or that the pla cited where the bare fact of an executive stock sale during the course of the class period has been used to infer falsity particularly but not only when you know the executive is giving an opinion a scientific o so i believe he says all the major studies us based addys i want to make that distinction so that what the district court did was it looked at the context of dr vania remark here which is i should note that it comes at the end of six single space pages in the transcript of remarks at a conference where he's been speaking about what new links doing and what you know their scientific views and his trial and it's only at the tiny piece that the plaintiffs have plucked out the specific context that this statement comes in is where dr behind me and is making a point and is illustrating that there is a much narrower window of a difference in predicting survival for patients with pancreatic cancer as opposed to patients with other types of pancreatic cancer and the type of cancer that he's using and you can see this just from just just a few wines before and the statement the plans of doubt have plucked out the same and the cancer that he's using as  says when you look at melanoma the survival rates have been much broader the the window of flexibility for predicting survival rates is much broader so it could be you could be melanoma survival rates have come between ten and forty months and then he makes the point for pancreatic cancer that window has been much narrower and it has not changed in the last three decades and that's about those those are undisputed facts that's a scientific opinion that the plaintiffs have not attempted to dispute and so what the district court did here was take a look at the context in which this statement was made and instead of taking the two words that's it you know and simply taking that in isolation he looked at what  statement of a opinion is a belief or a view that the mind forms of things so dr rani and mind needed to form a belief about what was major because that's simply not an objectively verifiable fa you can't find a journal for example that's called the journal of major study you cannot find title page of any of the articles that the plaintiffs have relied on in the special appendix an indication that those are considered major studies so absolutely we believe that that was critical and that was an opinion but you know a lot more about this case than i do for sure and one question i had was that apparently he mentioned  patients were twenty four months and twenty six months twenty six months and so he was giving an incomplete picture there he was picking a jew cherry picking the parts that he like to that your honor i would respond that he was not cherry picking the parts that he liked as is clear from the reference in the statements he was referencing stage two and stage to be data from it all though because the phase two trial that new linkage conducted at overwhelmingly consisted of representative of you know institutions around the country may well drive a scientist's opinion of how informative that study is as to the entire  drastically different then the percentages if you do not take into account exercisable options and so the plaintiffs pleaded it based on excluding exercisable options we presented it based on including exercisable options and the district court believe that that was an issue that was better suited for summary judgment i would like to address my colleagues note that this case is unique because cmdr was adequately pled i think it's very very critical to note the judge pauley actually only found a strong inference of cmdr with respect to a single statement and that was the statement that new link had completed patient and roman in two thousand and thirteen and that's a statement that that was connected to the allegations in the complaint about  the confidential witness that's exactly correct your honor and so he this is on joint appendix sixty nine thousand four hundred and ninety five dollars where that cabin ing of his holding is is is reflected in so we would not judge probably did not hold and it wouldn't make any sense that there was some finding of in the abstract fraudulent intent untethered to any sort of any specific statement i see my time is up just a couple of quick points st colleague here said that the the twenty percent difference between you know the study needed to show a twenty that mention the nath between twenty four point one months and doing twenty percent that that's her that's a calculation that all those facts are pledged in the complaint i'm just doing a calculation for the argument and also talking about the r t o g study counsellor mentioned that this is a multi institutional study so this might have certain added effect and lead doctor of the haney in to focus on this st says other studies but i don't know of another multi institutional study that actually fit in that survival rate window and i looked at quite a few john hopkins study as a retrospective analysis but apparently they said that that supports their survival rate assumptions as well lastly i'd just like to  mention for the last causation recently we submitted a twenty eight dollars j letter and although it's not binding precedent the another district court in nother southern district of new correlation documents in the you know somewhere in the record that matches the stock sales to the to the to the dates of the  seventy four thank you thank you back nicely argued