constitutes an actionable stream departure that that really can't be done under any circumstances at the motions in the state of then it can be done i think i think it certainly can be done i wish i could propose earnings analysis at the first circuit decision in shot and judge walker to to point the course to an answer to a question that you gave the first circuit in show uses this extreme departure language but on the bottom of page twelve zero seven of the reported opinion they give a little bit of meat on what that means and the first circuit says did the interim results quote forebode disaster that is a consistent standard judge walker and judge lawyer both of us the questions to the di maria decision which actually judge walker i had the pleasure of arguing from your honor i think fifteen years ago at this point in that standard  articulated in that case as here and as judge forrest correctly found a low the offering documents are quote replete with warnings and explanations and quote do not  an unrealistically optimistic picture of future performance that's at pages one eighty one and one eighty two judge lo yang if the court were to conclude that the show's standard is not the law of this circuit we would also respect to financial performance given the nature of the business here a speculative solar energy installation company with very very large upfront costs and the revenues green that is paid out over time in the registration statement at pages a one sixty one to one sixty two of the record quote we have incurred operating losses and may be unable to achieve or sustain profitability in the future sixty seven of the record where vivian solar specifically discloses quote our operating results may fluctuate from horder to quarter which could make our future performance difficult to predict and could cause our operating results for a particular period to fall below expectation resulting in a severe decline in the price of our common stock now judge horace concluded that interim orderly results were not required here for three reasons number one taking a holistic look at what was disclosed rather than cherry picking to buy items out of the balance sheet and income statement and of course the holistic approach in viewing a prospectus is what the supreme court has again fact dependent so in the shah case to use your example what animated the first circuits concern and why there was a disastrous quarter coming had more to do with the fact that as a result of the results that were being reported the company was going to have to not and walter its restructuring plans that it had disclosed were basically fully baked at that point so yes if the results were to disclose that there was an imminent bankruptcy for example i think we would be dealing with a far different case because in the words of the first circuit or in the words of judge walker in the maria or judge there and then to pay the prospectus would be conveying a dramatically the the outcome here and why judge forrest got it right quote we reject any bright line rule that an issue or engaging in a public offering is obligated to disclose interim operating results for the quarter in progress when ever it perceives a possibility that the quarter's results may disappoint the market and so the test is really far more stringent than what counsel from my friends on the other side is advocating in the interest of time let me just point to three factors that judge forest relied upon we think appropriately to conclude that there was no dramatic disaster clif of waiting at the end of the quarter number one she took a holistic view at the company what the company considered its quote he operating metrics and that is in the record at page eighty five thirteen but in contrast to what we want to go through or ask this you or you go through this process the most because it evolved on the district court your honor to determine whether or not from the facts alleged and from the information of which the will notice which is it's a bar it's undisputed really between the parties that includes information incorporated by reference the president didn't exactly a runner and that's where all of his financial information comes from judge fars have to make some quarter results to use judge thayer's term and then to quote within the range of well as a result that is why the district court in standard take this analysis and again it's in our papers i'm concerned about my time but i would urge the court to focus on not necessarily earnings per share and net income available to shareholders which is only drive f you engage in this somewhat hypothetical arbitrary book value calculation but the metrics that the thirteen in the second quarter of fourteen and in the third quarter of fourteen i'd like to just pause for one moment council in their papers and today again urge this court to focus on the reaction buying on an opinion of this court in the j p morgan case a five fifty f heard to all five says consideration of potential market reaction to the disclosure of a misstatement is to and again that was something that the court did not take cognizance of in determining whether or not it stated the claim your honor given the time to rest on our papers on the second set of misstatements relating to the market in why we believe obviously reference to solar energy system installations which i think this is very complicated stuff for me but i think we can all agree about solar energy systems installations me those are the number systems that were installed in a particular period and as the court will note the third quarter of thirteen which is the disastrous information that my friend here urges that the company should have disclosed two thousand nine hundred twenty one solar energy systems were installed by the second quarter of two thousand and fourteen that number had risen to fifty four hundred by the third quarter of fourteen that number had risen to close to seven thousand similarly megawat is nothing in the record or out alleged to to address is that the installations in hawaii quarter to quarter group in the market share srong when you look at the relative whole line versus their r the plaintiff's wishes the court to take a look at the first quarter ten you for two thousand and fifteen which was not in the record is not in their complaint it was added and we submitted is not appropriate on a motion to dismiss but what it says in there this is of course months after the end of the offering but to judge walker's question quote while our growth in other markets has