important to shareholders it also emitted a fundamental valuation analysis performed by tesco financial advisor that's routinely disclosed in merger proxy statements the transactions analysis now the district court concluded as a matter of law on a motion to dismiss that those omissions were permissible and we submit that it conducted a flawed analysis based heavily on unpublished district court opinions as the th circuit recently explained in campbell which involved a similar fourteen a claim many district courts are conducting the wrong inquiry the th circuit elaborated that unlike poker have an obligation under forty eight to projections from two thousand and twenty three to two thousand and fifty three well it's not an obligation as to what management was required to project but that's what they chose to do we know that the projections went out to two thousand and twenty two and our position is that by voluntary luck electing to disclose some projections a assume the duty an obligation to provide complete disclosure of the projection is it or readily available and could have been included in the privately open file discovery basically anything they've got they have to put into proxy statement you know and that's not our argument so i guess what i'm wondering is what is the limiting principle if they have it and they don't disclose it why would fourteen a stop short of liability i think the important factor in this expert which has found they have they did you allege that they had some sort of proprietary understanding of the oil trends that you couldn't do figured out from looking at oil markets no but i think the law is pretty well settled  that shareholders are required to go sift through the entire public domain to sign material information particularly when it's readily available in the possession of directors who are for the areas to the shareholders and again they elected voluntarily to understand how it's misleading what the disclose projection be alleged were a lot lower than for the later years again because of the trends in expected trends in the oil industry at that time so the position our position is that those numbers would support the higher valu n and that's also our position and what we allege with respect to the omitted transactions and leases to the shareholders would have voted no well we can't say but that's also not the law the supreme court's made clear in the industries that information does not have to be outcome of the term of in order to be material the question is whether it would assume significance in the in the deliberations maybe i was unclear i was missing materiality i'm trying to understand how you're misled you thought that that number was x  based on what they disclosed and in fact if you would know more information you would want to read why so shareholders are trying to assess if the consideration they're getting is fair and in order to make that assessment generally and we cite cases and starting our brief you need five year projections that's just kind of the standard in the industry that's why j p morgan needed all five years to conduct its fairness opinion position is by stopping sure and especially in this case because when they stop sure the trend in those early years was going to be inconsistent with what was expected to happen later shareholders are presented with a misleading overall picture of the company's trajectory which ties directly to the value of their shares and the fairness of them are you consideration in what is the best case you have for the proposition that j p morgan had it whatever information j p morgan had for its fairness opinion has to be disclosed in the proxy statement i don't think that's our argument either your honor ok well i'll take any case about what j p as our position with respect to the transactions analysis and again i want to be clear there's two distinct claims one about the projections and one about the omitted analysis but with respect to the analysis again that the board allotted to summarize j p morgan work in the proxy statement and we think it's a materially misleading summary when you omit the valuation analysis that we allege would have called into question the fairness of the merger consideration that shareholders received about of two pages in the proxy of what j p morgan's analysis was did you want more summary and how do we know that would be required with with pleading do you want the hour analysis how how does that line drawn as to why more was needed so the district court cited a standard that has made its way through some of the district court case law what's referred to as a fair summary that principle emanates from delaware case law and we cited in our opening brief it that's the standard that applies a fair summary requires disclosure of the key inputs and valuations that the banker performed and here we know that the bank performed three analyses only two of them were summarized in the proxy is that how you know them yes that's correct your honor there was a sentence in the proxy that summarized the analyses that j p morgan performed three were performed on two were summarized in the proxy and we allege that the one that was a mid would have called into question the fairness of the merger consideration and because of that we believe it was material and should have been disclosed and i also want to put in the context and we think this is a critical  district court this is a motion to dismiss and and the law is well established that it emanates from the supreme court's opinion in t s t industries that a motion to dismiss the question is whether the alleged omissions are so obviously unimportant that no reasonable man can disagree that's the standard that emanates directly from the supreme court's opinion and we don't believe it was made here we say numerous cases from this court in courts across the country discussing the importance of projections to shareholders and cash flow projections to shareholders particularly in the context of a merger when there have to decide whether or not to exchange their shares for the consideration they're being offered  also cited an opinion from delaware the classic case where a very similar type of analysis was amended from a shareholder communication and the court there tonight both a motion to dismiss and summary judgment finding that that type of analysis was at least arguably material to shareholders and again that's the question on a motion to dismiss were required to persuade the district court that these items were material as a matter of law so we think the court got it backwards on that on that point i'll turn to the safe harbor and as an initial matter defendants correctly concede that the safe harbor is in a play couple to the transactions analysis claim that some page thirty seven of their brief the district court didn't harbor to that particular claim which we think was right it did apply it to our claim premised on the omission of the projections i think it's important to know that our theory of liability in this case is not that the disclose projections were misleading because they all timidly failed to come to fruition those types of cases they refer to commonly as fraud by hindsight suits you see them most often in the ten b context we cited the quality systems opinion from the th circuit where it explained that the purpose of the safe harbor was really to protect companies it's a quote one optimistic projections of growth in revenues and earnings are not borne out by events and again that's not our theory of liability  theory is that they had six years of projections and for some reason they decided rowing going to show you seventeen and eighteen and again we allege the later years would have painted a different overall picture of the company's value and we are you in  obviously and so it's c one in general and it's repeating language that is found in most of the security statutes claims based on true statements of material fact or omissions of material  fact our position is when you look later though and you get into the actual meat of the safe harbor so it's a and b it's focusing on spode looking statements that are identified as forward looking and accompanied by meaningful cautionary language and then he goes on to discuss statements that are made so obviously an omission was not identified or accompanied by anything it is by definition a statement that was not made or included in the proxy so we do believe that the text in addition to the legislative history supports a position and again as far as legislative history goes we cited the center of port the house conference report which we believe makes clear that congress really had a min these tend the five brought by hansei cases which is not our case here can we go back to the text real quick europe if i understood your response to the chief judge the word of mission in the umbrella i see one doesn't have any meaning because if you look down in a and b these are about affirmative statements that's correct your honor so we just read a mission out of the statute but i'm not sure how to read it in because again how could an omission be accompanied or identified as  anything but i mean one theory would be if you make an affirmative statement but you failed to see if you affirmatively state a and you failed to state b then perhaps a could be misleading because of the omission of b in the safe harbor would of liability and i acknowledge that it becomes difficult given the what we believe is the out of the of of the text but there are numerous cases that have agreed with our position and we would ask this court to take a look at those and  we think it's a sound conclusion but if the court disagrees then it comes down to well was the cautionary language sufficient that's the st question and this report concluded that it was and we respectfully disagree this court's opinions in the warm and in south wind and rubenstein make clear that cautionary language needs to be substantive and it needs to be specifically tailored to the particular risk at issue and we don't believe such language was included in this proxy and it was not cited by defendants or the district court essentially the language they're citing is again language that would perhaps shield them from liability in a broadly onsite case it was that the projections are inherently uncertain and they may not come to fruition and everyone knows that shareholders recognize that but again that's not our theory here or theory here was that they withheld readily available numbers for the later years and nothing in the proxy said something along the lines of we have six years of projections on the later years are significantly higher than the early years not in there perhaps that type of statement could have shielded them but again it's not there so we don't think the language that the district court pointed to was sufficient and we think our position is supported by this court's precedents in the cases i just mentioned now if the court agrees that  cautionary language was not sufficient the next question presuming the safe harbor applies to the projections claim is actual knowledge now the district court didn't reach the actual knowledge  straightforward analysis here again given the theory of liability i don't think anyone disputes and it's not reasonably disputable that the defendants knew about the omitted projections they were responsible for overseeing j p morgan's fairness opinion valuations there were numerous meetings between the board and j p morgan we allege those in the complaint i'm actually i was i can ask you about what you're alleging i'm some looking at paragraphs one pins knowledge in this context because it's a statement made by the company solely on an executive officer and that's in c b subsection two and so that at least the c e o knew that the projections for five years existed and that they had novel occasion to review the proxy to make sure it was complete and accurate and they did not i'm not sure which paragraph you're referring to but this one clearly isn't sufficient borers all liability other than for the transactions analysis claim and judge told them to square the statute with respect to both points this court has repeatedly considered consistently held in the ten b thought context  that you can't just have a pure emission claim it has to be a misleading statement claim it's in the r to investments case in the shaw group case in supreme court in the army care case applied that specifically to section  eleven and courts and surprisingly it looked at the fourteen a language which is very similar in of applied the same construction and so plaintiffs have not alleged materially misleading statement and i think that square is the statute with respect to the safe harbor because there are no omissions have no significance under fourteen a apart from the extent to which they render an affirmative statement misleading and so it's not surprising that the safe harbor is drafted the way it is it applies to statements which are the only possible basis for a claim and a plate of cannot end run the safe harbor by trying to fashion emissions claimed in this case the alleged omissions themselves are forward looking statements  their projections and congress pressley provided that this applies to any private action under this does chapter meeting meeting fourteen meaning the exchange act which includes fourteen a claims the fact that be brought under the exchange that there is no inconsistency and the plain language of the statute controls and so one of the statutes of plain language the safe harbor applies to all the forward looking statements it applies to the d c s calculations discounted cash flow which themselves are estimates of forward looking statements and even if the safe harbor didn't apply in this case judge bennett was absolutely correct in concluding that there is no allegation  misleading statement in the st instance point of say now by we have the advantage of hindsight now looking at how they will help markets have done in the past few years judging by the bankruptcy docket right now in the southern district of  texas unfortunately projections don't always work out in this industry and these companies are both in the same industry and this was a stock for stock transactions so both companies were affected by it there's no allegation that one side was unique affected and it would have changed the ratio in terms of the exchange so across it were either there is no materiality with respect to the projections the safe harbor applies and with respect to actual knowledge this corps has again and again of paragraphs in that complaint for more specific than this one and that didn't show severe recklessness this case certainly does not show actual knowledge and then the the only claim in this case that we have not alleged is covered by the safe harbor is the transaction analysis claim and that's simply an allegation by the plaintiff that that the company had a duty to disclose what premiums were  other transactions across the board and i think not only is there no allegation showing that a misleading statement was made with respect to any premiums and other transactions but that's an area judge told them to your question about a limiting principle there'd be no limiting principle whatsoever if a company had a duty to scour public markets and make affirmative disclosures about what premiums were in other transactions a cup that was this proxy accurately  light lead somebody to a different conclusion or that some other piece of information might have that same effect again there's no limiting principle involved it would allow plaintiffs to end run the pleading standards these case cases pages executed by tesco management it's directed to tesco shareholders to vote on it we would also contend that this issue wasn't it was not led only allegation is that defendants as a group issued the proxy and that's just  and if your honour's have no further questions i will yield the balance of my time i have ever one quick one i understand from your brief that there is no legal basis to challenge the disclosure of the information given to j p morgan for the fairness opinion what i'm it's not obvious to me why that's true i've read a couple of the cases that you cite have kits i have read all of them in detail can you explain to me why i mean if you give five years of data to j p morgan so that they can then provide a fairness opinion i would think you wouldn't want to disclose two years and not the other three there is a couple of reasons your honor for that number one the story with the federal statute it's a misleading statement statute so there has to be a misleading affirmative statement in the st instance there are delaware cases as i think we've seen in the briefing where in a cash out merger where shareholders are being asked to to give up their shares for cash that that scenario that you describe there are some delaware cases that have said there you may have a freestanding duty to disclose that that has not translated into the fourteen day realm and especially in the stock or stock transaction r opinion in the record where the court alberta has to approve the arrangement and they have to approve the proxy disclosures it go out and it's the judge has to supervise it and it's not a deal is not done until the judge itself plainly applies to a claim that disclosing additional projections from a forward looking disclosure projections fall squarely within the safe harbor we think by the way the pre of our brief addresses the cautionary language issue and played its primary argument on that was that we didn't disclose favorable oil price trends in two thousand and nineteen in fact the specific risk of commodity price i know i don't have as much time so i'll be quick we all agree safe harbor does not apply to the transactions analysis clay and we've got a case on point last minute says it's material we think that's sufficient certainly in a motion to dismiss the claim its neighbors premised upon the use of name theory that's a distinct theory of liability it flows directly from the text of section fourteen a we cite cases in our brief clipping from the d c circuit that we think are on point and we would ask the