the next case pipefitters enters versus american express and then circle back in a more chronological fashion time permitting the first point is a more straightforward misrepresentation claim dealing with statements by  january in january twenty fifth seen at their conference call which contained misleading half truths and did not disclose that they were on the go is going to go she ations with cosco nor did  disclose that there had been prior bids put out by cosco to the industry the second argument with which is the first of our update arguments deals with the so called catch up call and what that reflected and that led we submit to a duty to update with respect to the progress of negotiations and where things stood and finally if time permits all circled back contract up to bit now dealing with the january twenty first call which was the fourth quarter conference call we're dealing with january twenty first twenty fifteen the best way to look at this is that this is it in a context of a question and answer and it just suits false and state i'm sorry what is false in that statement what is false of that statement and forty four and the analyst is questioning when might we hear about the cost to us deal and the answer by the c f o mr campbell is cost goes a very important and long term partner yes that is true no question about it we think we've been great partners and create a lot of value and that's true too and they say i would point out to you that i don't think we said anything about ongoing discussions we're having with cosco then so he says i don't think we've said anything about ongoing discusses what's on true but that is true as far as it goes now we get to the probably why did you have to say more he has to because now he gets out of the safe harbor of the no comment in the next sentence i'm about ready to address and that's where it becomes it begins to get unraveled he says obviously with very important partners we're always working every day to evolve the relationship to make it better and frankly to make sure it's working for both parties you can presume we're doing that with cosco as we're doing it with all our partners you know what i don't that's just a big  it's a dodge of rick russian about whether what the deal is with regard to the negotiations is not it doesn't it's not an indication that the negotiators the fact that they work hard with their partners we allege that what that means is yes they do work hard with their partners w not disputing the actual factual truth of that the impression being created however is that this is more or less routine servicing of large important customers and it's not it's not a representation of negotiations of the renewal of a contract that's correct it's not because it's not because then why does one have to update it when the negotiations do begin this is not an update claim your honor let's let's be clear it's a  that says that it's that statement that we just talked about and just discussed is a half truth and it's a half truth because they started to talk about what was going on with cosco how they were treating cosco how they were servicing costs and they made it look routine they created the impression it was routine and it was anything else but routine to be truthful they had they could say that which we all admit is true but then they had to say and in addition we are also in serious negotiations with respect to the agreement which is the pred separate issue from the fact that they have ongoing daily relations with well once you bring up a subject you have to talk  period of time you know and i really appreciate the business that we do them and we work very hard to maintain a good relationship with them and at the same time i don't disclose that chin enterprises and i are about to you answer the question first and then you can tell me why as well the problem it with your honor's hypothetical is that the first part of it is probably puffery and this predicate sentence goes beyond that it says lies in this puffer with a very important part as we're always working every day to evolve the relationships why isn't puffery you can you can presume we are doing that we can reach presuming that we're doing servicing and frankly i'm not say anything well they are saying what they are saying things number one they are saying look the whole market knows that this contract is in peril so the whole context of this thing which is set forward by the totally in the abstract and these people aren't just getting up and making statements about how things are going this is in a particular context and that context we submit and we pass the plausibility threshold because of what the analyst says the analyst sets the stage for this and that's what that's where the district court when iran i and that's very easy go right because you have to take the context and in these calls the analysts set the context and the analysts are concerned if not obsessed with the timing and what's going on with this contract and they're saying well we're doing the routine good old stuff that we always do and they don't go on to say that they're in serious negotiations now what's so bad about that what's so bad about that is that the rule is clear the judicial gloss is that there is a safe harbor on transaction what he says is the rule is that by by that he's got a great relationship with a client who's working on a relationship with a client i don't just because you and i both agreed that this doesn't have anything to do the negotiation it does it doesn't it have doesn't have anything to give the negotiation other than being mr directive yes that's called a law that's called politics and business although i know that's fine all attention and make a living doing it that's true and we all do and hopefully we do it well but the point is that we're talking about two rules and perhaps i didn't explain we have two rules in play here what is the rule your honor just articulated which is if you speak on a subject you have to speak fully and truthfully that's that's rule two rule one is if you're talking about potential transactions you have to say no comment that's the rule that's the rule that this court and other courts have sent down that is a safe harbor and once you get outside that safe harbor you are traveling at your p and they walked out of the safe harbor and they walked out of the safe harbor for a clear motive because they were in in a fix they were in a fix because they had lost canada people were concerned whether they would lose the united states they wanted to keep the stock from tanking and so what they said repeatedly was in the abstract statements of either historical fact or you can say it's puffery but they were saying we're different we have a fifteen year relationship with these people and that's why this has nothing to do with canada so hang on don't panic and that's what was going on and this is just another version of this you have you have two minutes for bottle here from the inside thank you very good thank you diddly true and they're trying to fly specked them and bring a case based on implications and connotations that are not fairly read from the statements themselves and they're also trying to do another thing which is read those statements in a vacuum and ignore all of the risk disclosures that american express made over the years which explicitly disclosed the risk that this contract would not be renewed when it expired and those risk disclosures were actually focused and intensified during the period at issue and if you look at these statements and read them fairly and also read them in context they were not recognized in your questioning the plain words of mr campbell's statement disprove the allegations the plain words were absolutely true and rather than repeat some of the points that i know that your honour's already made in your questions i do want to just focus on one additional thing that didn't come up in mr campbell statements in addition to saying that he wasn't going to comment because i don't think we've said anything about the us and india and in addition to saying some very vague comments which indicated he was trying to avoid talking about the us he also made another very important reference he said it if and when we have any news as we did with delta which we chose to renew early we would certainly tell you now delta was another co brand relationship that was coming up for expiration and as part of its strategy to renew that contract delta excuse me american express initiated early negotiations to renew it and those negotiations were successful and so by referring to that it makes it even more clear that this is an absolutely accurate statement that would have been understood by these analysts to mean right now we are talking to costco the way we talk any other time and don't worry if we reach an agreement to renew or we don't reach an agreement to renew we'll tell you just like we did with delta so you can take that delta piece out of the statement it really helps to understand just how complete and how earlier and disclosed the delta relationship importantly in two thousand and fifteen american express has we in two thousand and fourteen american express revised its risk disclosures to also disclose the cosco relationship and that's how much transparency american express made about this risk of germination and that's precisely the way the rest disclosures were improved just before and during the i think american express did have a duty to tell the market when the negotiations had failed and that's exactly what american express did in february it seems that was too and the securities laws absolutely do not impose that type of an obligation it would interfere with company's ability to do business there are multiple cases starting with basic that talk about the importance of giving companies the ability to do business and you do not have to make a negotiation i mean just imagine the rule that they're trying to set down in the negotiations went badly today let's tell the market the negotiations went badly two days later we made a breakthrough let's tell the market again that's not the law and that would be a horrible horrible rule from a policy perspective the other point i'd like to make your honour's is mr dobbs described the law in this area as being once you go beyond no comment all bets are off and you've committed a securities law violation that's not the law there are two cases in this area there's the box bound case and there's the m c i case those are not cases where the defendants simply went beyond that no comment those are cases where the defendants made affirmatively false denials of ongoing merger negotiations so the b case was a case where do each bank was in the process of negotiating a merger or takeover of bankers trust the c e o was asked about that and he said definitively there was no talk of a takeover when in fact there was that was a definitive false statement that is way beyond just that not saying no comment that is an affirmative false statement similarly in the m c i case m had registered an internet domain name of a company that it was negotiating with it was asked why did you register that domain name is it because you're going to take that company over and the corporate officer falsely said that i have a little more time on the duty to update claim if i may once again absolutely true statements the contracts that american express had with the united states and canada and were were separate they were completely separate and the facts here show that those contracts were separate after the deal with canada was terminated and  announcement was made in september of two thousand and fourteen american express negotiated separately with costco us for four more months and during that time period american express genuinely and reasonably believed that even though its much smaller relationship with cosco had not been renewed that this much larger relationship which had gone on for many years and which would have been very expensive and was very expensive for costco us to replace they believe that they would successfully renegotiate so it was not at all inevitable from the time that costco canada nonna renewed that cosco us were also not renewed and that's really the essence of their case they're saying you you really knew once you lost canada it was inevitable that you would lose us that wasn't true and in fact an interesting point your hono cosco us in costco canada actually entered into contracts with different credit card companies so it's it was not inevitable that costco us was going to do exactly what costco canada did and in fact they didn't do exactly what costco canada did here again the plaintiffs also ignore the law the only cases that recognize a duty to update involve predictions guarantees a future performance bikies second circuit case on that is illinois state board versus authenticate and that was the case where the company said it believes it has reached an agreement in principle and it was quote very confident about amending a key contract with the u s postal service and the company subsequently learned that it would not be amended and didn't disclose that that was really a definitive predictive statement you cannot compare anything that american express did about these contracts being separate to the statements that were made in the affected authenticate case if your honour's have no further questions a january statement than active negotiations were going on so their actual knowledge of that is not an issue now what we have been talking about before is not undercut by my colle discussion of the cases where people flat out lied they were outside the safe harbor and they lied and they got what was coming to them if you were in the middle of a transaction you say and you're ask how's it going you say no comment if you say something else you are at your peril here's something else was said it has a future component a future looking forward looking component to it because these people had message from day one that this contract would get go through or have a very good chance of going through because of the longstanding fifteen year relationship which made it different than can that was the strategy and when those statements which were made which you can put up on a sampler and individually they're all true that means nothing because the context of the trading and the context of the whole thing make them part of a mosaic which for purposes of alleging particular submit is sufficient now as to risk disclosures if you look at the risk disclosures they're very general and they talk about the risk that this thing be would not be renewed everybody agrees that there was a risk it wouldn't be renewed it says so much it says nothing that's the bottom line on the wrist disclosures and indeed even if they were tighter if you allege actual knowledge of the p s l or a you can pierce the risk disclosures so any time obligations if the question is asked how are negotiations going and the answer is we are servicing them like we serve all the other big clients that we love period then they've gone outside the no comment zone and they have to be fully truthful and they have to say where it's admitted clearly that they knew the negotiations were going on that i if you go beyond that or you can cut back on that that we have that is the rule is it exists people don't like it that would have to be we would have that's the rule as you understand it well i think   applied sufficient particularity that there was a half truth with respect to the failure to disclose the negotiations in this context in this context where an analyst has specifically addressed the o and says talk about the negotiations if he said talk about the weather it's a different case and thank you we have one more i'm sorry your honor you began by saying that the  if i have the wrong here with me one moment