was the court good afternoon my name is daniel j gallacher and i'm the attorney representing the thirty five plus plaintiffs in this litigation the issue in this case of course is whether or not the district judge district court correctly dismissed our fifth amended complaint under the under twelve b six standard is whether or not if all the wealthy delegations stayed a cause of action of course we assert that the complaint did state a cause of action clearly stated a cause of action the complaint alleges that my clients who were employees  pool through false and misleading statements those false and misleading statements caused the demise of infinium which two or two plus years after they made their investment closed its doors and was sold representations are laid out in great detail in the complaint of course they were not a lot of discovery in the case although we asked for discovery on numerous occasions but we did receive the benefit obviously of being able to interview a former employees of the fact of the time my clients were solicited infinium was on the verge of bankruptcy this is in the words of the individual defendants it was in dire financial condition that if it wasn't able to convince the my clients among other place among other employees to convert their debt to equity the company would go under relatively quickly but doctors also showed asplen the complaint that that the so called untapped twenty million dollar line of credit with fifth third bank that was touted both in the in the p p m as well as in the town hall meetings as being untapped in about twenty million dollars and available to cover any issues that would arise in connection with the business of the company as well as paying out laurel and hanley who were withdrawing was available i that specifically so after doing some more due diligence we did allege in the complaint the names of the individual offender and so actually made the statements that those town hall meetings which were false and misleading but you just listed the names she didn't identify meetings it's making these statements to the audience of each each plaintiff had different recollections of which individuals had made the statements there's nothing more we could do now keep in mind please respectfully that the transcripts of those proceedings were available they were in the possession of the f c c i saw them when i was there for the deposition i was actually able look at them briefly and connect some of the dots but again it was point allowed look at look at the transcript or say fifteen minutes during a break so so we have done as much as is humanly possible these days my clients didn't videotape these town hall meetings they didn't record the town hall meetings the company record of the town hall but even if you assume the town hall meetings are not don't help us in any way shape or form a study claims we still have  fact the lack of trading capital is what caused the demise of the lack of equity is what caused the lack of training capital furthermore the p p m states specifically that they have an untapped twenty million dollar line of credit for purposes of because of a quote unquote emergency that's what appears in the f c c documents so even if you accept the fact that the judge was right about the town hall meetings and i suggest to the court that i think that's requiring pleading to a heightened standard pleading requirement is to prevent a case from going into discovery if the plaintiffs can't satisfy night they also the same thing they all said they had a twenty million dollars untapped line of credit which was false or one that also there be sixty million dollars of equity at the it please the court matthew was on behalf of the defendant ellie's the court should it should affirm the district court's just missile plaintiff's complaint for three reasons first the fifth the many complaint fails to satisfy the exacting and specific plaintiffs were given extensive disclosures in a private placement memoranda these disclosures directly contradict plaintiff's claims that they were misled third the explicit non reliance clause in the each of the plaintiff's subscription agreements bars their claim that they justifiably relied on prior oral statements made during a town hall meeting if you have a group presentation and they're all adding statements aren't they by not contradicting each other i mean isn't it to you aren't they all making those statements that maybe that i can some where you have you know  in the room or it's handed then they try to they they try to ascribe all of the allegations to all of the speakers the interesting thing there is they don't even identify who the speaker is of the statement town hall meetings in order to get an account of who said what i think that the put to kill or the requirements are pretty pretty clear that the defendant or their plaintiffs need so identify who made each mistake ultimately didn't they do that though didn't they essentially say so in each individual defendant made each individual state they the district court obviously noted that that was not what play the plaintiffs and plead that literally and they had meditated they pled they pled that they replace of defendants and infinium with the names of the individual officers of the individual defendants the court rightly so right through that gimmick to say to show that the plaintiffs was not were not  pleading with any particular ready to identify who made it which misstatement obviously the failure to identify who made which misstatement bleeds over into the analysis of whether plaintiffs pled a strong inference of enter without identifying who made which misstatement isn't it next to impossible to identify what whether that person had the requisite state of mind the only the only statement that that pla individual defendant is the same and by mr i push which he said that he stated that infinium had access to an untapped credit line from fifth third bank but even with this statement they fail to identify to plead any facts that would give rise to a strong inference that mr ike bush knew that statement to be false they don't plead any facts regarding his access to information about that line of credit or that he knew that it was and that it was had been tapped at the time more importantly they don't allege that mr i pushed had any motive to lie to the plaintiffs mr i push like the plaintiffs was becoming a class b to shareholder himself he converted his debt in the erm to equity just like the plaintiffs so it seems that he has a concrete reason not to lie to them and certainly the plants haven't played any facts to suggest otherwise to round out the pleading failures the plaintiffs also failed to plead last causation with particularity this court has said and try continental versus pricewaterhouse coopers that the plausibility standard does not apply the particularities excuse me particularities standard applies to this element in the put here the plaintiffs plead last position in only the most conclusory way paragraph one thirty which is the entirety of their last causation allegations reads the complete loss of plaintiff investments in the equity and infinium is the direct and proximate result of among other things and then the plaintiffs lists off all of their grievances all of the alleged misstatements all of the omissions without making any attempt to plead this court requires that the very facts about which to find the lied caused their injuries aside from the pleading deficiencies the private placement memorandum that each of the plaintiffs received an acknowledged receiving contradicts several of the misstatements alleged by the plaintiffs this court has long accepted the doctrine that a person who receives a written oral disclosure of the truth may not rely a contrary oral falsus here the players were provided with extensive risk disclosures for example they claim that they were promised that there would be one class of equity with equal rights during the town hall meeting yet the m discloses that the board has the right to sell or issue additional interests or other equity interests of the company to members or third parties on terms that may be senior to junior to or on parity with the terms  they were guaranteed that they would be able to redeem their investment after one year the p p m expressly warned plaintiffs that their rights to withdraw shall be subject to deferral or limitation in the event the board determines acting reasonably each of those p p m disclosures contradict plaintiff's claims and applying this court's decision in car vs cygnus securities the plaintiffs cannot rely on oral statements to the contrary in the district court rightly noted that finally the nonal clause in each of the plain of subscription agreements bars reliance on not on extra contractual statements or oral statements made during the town hall as this court held in reston vs risk mn an explicit non disclosure clause in a stock purchase agreement renders reliance on oral representations unreasonable as a matter of law in securities cases here the plaintiffs each expressly acknowledged that the determination of the undersigned to purchase the interest has been made by the undersigned independent of any statements or opinions as to the advisability of that purchase then the non reliance clause says no representations warranties written communications with respect to the interest have been made to the undersigned and entering into this transaction the underside is not relying upon any information other than that contained in the l l c agreement the jointer and the results of the  independent investigation similar clauses have been held both and in delaware and illinois courts to almost identical provisions have been held to bar claims of reliance on oral representation under because they didn't have any money to trade or you can't trade you can't make money it's pretty company so it's like laid out spelled out in detail it's very very simple quite frankly not the council so the court saw through the gimmick that we're gauged in connection with putting the actual individuals names in in place of what was said that's complete surmise you can't determine it's a gimmick but it will be six i mean we've alleged these things under under penalty of will rule eleven so our clients are telling us these people said these things about the line of credit and about the equity at these at these meetings and that they were all there at the meetings so i mean we've got you can't just go to court can't just say that's a gimmick that's a summary judgment to a characterization not of not a characterization on a motion to dismiss finding on c n n or the documents that we've documents that we've alleged the content of those docs that paragraph one hundred four of the complaint lays out the intensive communication between the individual defendants before the committee for the solicitation before the conversion of what they needed to do in order to