ma'am please the core of these cases is pretty straightforward and they boil down to whether the same projections that a company prepares approves and use it during a sales process and the bidders used to make a bit them make sure i understand the facts here that those projections did not result in the  so when they are issued their final fairness opinion they gave us a projection a projection that was slower because it reflected what the marketplace and council your view is that going for thirty four attentional bitters to two and then one in large part based upon the results of the phase two that that's not a reason to lower projections that you have projections that you think are going to result it is huge offers for many the ability to continue with the going to concern within twelve months following the date of the filing of this firm stink for a form form thank you is that issue that same language was in three thing to use it within twelve months was the issue on q one and things are getting worse you would expect the same sentence to three also the court of the liberty to interpret the single so are you saying they did not need investment to continue as a company open that's a normal thing for a pharmaceutical does they need investment but doesn't mean that you long for your projections because the value of the bitter short telling you and the court interpreted that think you went there when the things you said will depend heavily on the volume investors see investors the court interpreted to mean the bidders is not that it's your holders we know that because in q three the announcement from section and they have the same board or play language we can leap to the correct yes but there's reasons for that it took it to not been explained explained to me given the facts which you just agreed are correct what was it that cause your clients a loss what was the last causation once the theory plausibly that they should and would have made more money absent the is on which you say simply connected because presumably they made their offer based on their due diligence like the other thirty or so how did how does that was at least suggest that your clients would have done better absent these projections even if we were to agree with you that they were improper so let's assume it's true there's only one bidder and that's what happened and the company sells just what i want better perhaps is no the right time to sell to sell but how does that relate to in terms of lost cause ation how is that ross on xbox the projections how does the projections result in the company selling at a time when it when it shouldn't have you're saying that even though this was the only then or now you've plausibly suggested that if the projections had been higher that there wouldn't have been enough people  rd you have to show there were other appraisals out there we have identified that in our complaint of higher higher values and due to the submissions shareholders were not informed that's my job today and i had done that job and i did well and i have a specific matter that's a court ability for trial not any sort of motion to dismiss the court took liberties to not view the facts in the light most favorable and the fact that you only have one bitter at the end that's not every option brought this is going i have listed get both types of cases i understand your honor but you don't need to have a conflict and you don't need to have because there's no state of mind him to negligence case and whatever the board did during the cells process it's irrelevant frankly all in mater sees what they did in relation to the disclosures in the recrimination statement that's where you need to view the negligent negligence lies when you emit a material fact and that's the wilson case from the nd circuit that said it we also in our supplemental letter mission is really what you're claiming is its trick liability it's not that which is to strict liability you need you need a comic law so you need to also have other ways to show that there were with higher volume and also every case you could argue strict liability if you meet the elements of that case whether it's civil or criminal here you must have i know mission it must be material and you must be able to claim because what other people tell you outside your company makes no sense then why do shareholders pay millions of dollars in compensation to management to run a company that is not what they're supposed to do and by the way why no disclose the information we're not finding about anything other that should have shown that information to shareholders there's no argument that this was immaterial as a matter of law when you leap fox doesn't mean every time you need to disclose every  not plausibly allege any facts to show that the individual defendant acted negligently when making the challenge statement he instead relies on mere conclusory allegations that the individual defendant as a group or quote negligent and  seeks to hold defendants liable without pleading lost causation economic loss requires a plausible explanation of how he could have gotten more money for his shares which he simply can't do any one dollar of these ground each thoroughly trust by the district court can we that should lead this court to affirm now i'd like to start with quintus emissions claim that the emission of the june and august projections made the november projections materially misleading let's just not claiming that the november projections are materially false or untrue depended that in his blue brief on pages ten dollars eleven cents so to state in a mission to claim he has to show that the emitted projections were both material and that they made the november projections misleading and i think the easiest place to start here is with the misleading requirement because my friends focuses a lot on these projections being material but materiality isn't enough he also has to show that the mission of those projections made the new fembot projection misleading and that's a difficult task as this court brodie decision said the emission must affirmatively create an impression of the state of others as long as the projection revealed how to reasonable basis in foreign a mission you would need facts tending to seriously undermine its accuracy and what that gets to is there's no completeness requirement in this circuit or in the supreme court's you know on the care case just because something might be material we don't think it is here doesn't mean that that projection has to be disclosed the critical question is whether or not it makes of november projection misleading and there simply are no facts alleged anywhere in the complaint that would indicate that the november projection is misleading by the emission of the june and august projections the existence of those projections w soko complaint alleges that and it's it's alleged and it's shown on the recommendation statement that the june projection always was reduced based upon feedback from other  parts from potential partners and that's significant here when you're talking about a company like oh sarah that has no product that has only one product in development in clinical trials it just failed needs to go through regulatory  has had any sort of profit given that that type of projection which is an opinion statement you really would need to show that there's no reasonable basis for it in order to show that it's misleading now plaintiffs other argument with respect to the supplemental disclosure that also fails for very similar reasons where he's trying to say that three of the five reasons in the supplemental disclosure or untrue you need to actually look at what the supplemental disclosure is and makes clear that the challenge statement there was an expansion on the feedback that potential partners provided and there's nothing untrue about that statement the complaint itself alleges that  himself alleges that argument you're making about the lack of any misleading on mission or any leading statement that argument really rise and fall with your because for the last causation argument there's just simply no economic loss that plan if it's a legit all he has is a legal conclusion that that of sara's true value was greater than the  merger consideration and regardless of whether or not you would look at a particular your requirement or paul twomey way that's just not enough it's just a legal conclusion because plaintiff would need to plead actual facts demonstrating economic loss that he could have actually gotten more for his shares and i think that when you look at this transaction there's just no plausible way in which plaintiffs could have gotten more for this transaction given the fact that there were thirty four dollars companies interested in january that went down to fifteen then to seven then to two then to one it was a situation where it was an auction and there was just one bitter left it was a situation were various companies conducted due diligence and during the course of the due diligence as is stated in the recommendation statement and as legend the complaint these companies dropped out because of concerns they had with the clinical data that they were reeling it  that even if the june and august projections were material they still would only support cause of action if they made the november projection itself misleading and he doesn't have any allegations to support that but even if that the june and august projections were material that would just mean that that's information that would change the total mix of information of the shareholders might find it useful but that doesn't mean that there would be loss causation buys or any economic loss suffered by the plaintiff here i think the supreme court's dura case is instructive because in that case the supreme court held that you don't have lost causation because you allege that you paid too much for stock but there's an inflated stock value and that sort of similar here were plaintiff is effectively saying that the stock price was deflated in both situations it's too speculative and that's part of the thrust of dura that you unless you can show that the actually was a way to have treated the stock and lost money then you don't have lost causation and the same thing is true here unless you can actually so that there was another transaction that could have been entered into you can't so lost brodie case for example is an example of how you potentially could have lost causation or an investor sold the shares before tender offer before the tender offer price and then said had the company not emitted information they would have known there was going to be a tender off and they wouldn't have sold the shares and that's a situation where there's the potential ross causation or if you had a situation where there was a company where people were truly interested in that and there were two offers at the end and management chose one offer over the other and it turns out the other offer was actually better you know you could see that situation where there might be conflicts it director or insiders that there might be financial  that type of situation there could be a lost cause addition if you said the other transaction was better but i think that if we listen to my friends argument a lot of what he's doing is criticizing the business judgment of the company and the executives in the company that they should have just held on to the company they should have accepted a better price that they shouldn't have lowered projections based upon feedback that's not a section fourteen dollars he claims that's just a challenge the business judgment of points you mention the nd of your points was that there is a failure to allege adequately alleged negligence but what about those cases that say in this do have strict liability statues section eleven for example is a strict liability statute and the supreme court and on the care reiterated that all it requires is a violation as long as the pla alleges that there has been a material misstatement or a mission in a registration statement then the violation is enough it doesn't matter that the speaker might have been innocently made a mistake there is here and that to your twenty seven when the court said there are no facts alleging defendants filter review certain materials are neglecting their responsibilities or design and oversaw a flawed review flawed review process those are the types of allegations that would that could plausibly show negligence on the part of defendants and that's what is entirely missing here is we just have a legal conclusion to sixty that the individual defendants were negligent in carrying out their duty think it's a it's important we cited the u s government and the emulex case and the u s government has taken the position on section fourteen that negligence is required and has compared that to section eleven and the way they prove damages what what were the shares worth at the time that the oklo to know what they could have got is what they are worth and we would have used the projections that they've been disclosed and to give an example of other ways to seek damages which information that the board they are a group they all have the same obligation to review the recommendations statement and of course they did that's required by law and they say in the recombination statement this order reasons why the board approved transaction so of course we have pled that there was a duty and a violation of that duty we believe this case should be rim reversed and remanded to the lower court thank you thank you both sides for the very helpful argument the case