those were the words of the sponsor of the williams act bill they wanted to ensure shareholders were protected and received on the good information when they were presented with in this intimate on a merger maybe through a proxy or maybe that you may have different levels of culpability or distinct levels of culpability in a statue and that was aaron versus as you see in one thousand nine hundred the seventeen act or thirty thirty act section seventeen has three provisions one two and three under section two a two that's negligence because that deals with information where one in three to deal with the fraudulent type of conduct that deals with ganter and we're asking that we use that analogy on a fourteen a claim and that negligence be the standard when we're really arguing i think is even though that goes against five other circuits the other five circuits with all due respect to those applies because rule of thumb be five c enter and they use rope and that's a snowball effect we've had and frankly not a logical conclusion of course it's seems like a very rational conclusion until you look at these intervening supreme court decisions and about materiality and why the one page premium analysis which damps to review at best meets the stamped statutory standard of being a material fact necessary to make the statements nasty not misleading in light of all the circumstances and the the summary of the goldman sachs report  seems to me to accurately were represent their ultimate opinion which was that the offer was fair and there were many many other reasons why the defendant  described that they thought the merger was fair so i guess i'm concerned about whether this meets the materiality standards short to things materiality should be a question of fact  it but if there were there were two areas they compared some companies that they thought were more similar and then this premium analysis was a different list of companies and i guess i'm just ordinarily materiality is a question of fact i to a reasonable investor in light of everything else that was disclosed and in light of the entirety of the goldman sachs opinion twenty six point four percent is the premium they touted thirteen times in the recommendations the human that's not a high premium in consideration for shareholders that's a lot of money that shareholders are not aware they could have potentially got and that tender was approved only by sixty percent that's a a high approval rating for a tender offer this information is the type of information which we also submitted an excerpt that other recommendations damus would have disclose it was not disclose here and we believe the reason was even look favorable and they wanted to tout that these with a twenty six percent premium for the day over what anything else would be developed regarding materiality you know the for the district court or if we sent this back or i think if we send this back that and we send it back on a negligence i think we should be able to survive a motion to dismiss and then we get to the point of what bankers advice was given on regards to the premium what the board understood at the adequate premium should have been and shareholders now would be able to recover monetary losses to i'm just trying to figure out what you know if if there's agreement here with you with your position and i'm i don't know i can't speak for the panel i just trying to figure out so we would send it back because we can't make a determination of fact and you think that there smirk further factual development or that the district court is the only one who can make that determination of whether or not there's a genuine issue to act based on this materiality question i think you would remind for further proceedings and i do think the district court could view the issue of materiality at a later time at a summary judgment i don't think was appropriate to discuss it a motion to dismiss but that when we have documents that contradict or support plaintiffs but i mean that's why this is not development what happened what else would what else is there to do factually we would have to take this i mean factually we would go back to this to court and we would want to conduct further discovery on what the board understood these analysis to mean whether the board sought advice from their were other higher percentages out there in the majority of cases that this was in the range of normal and ultimately goldman sachs said it was fair so what are there other facts that a reasonable investor would know well but recently investor would want to know this information and now we can all go back in time no no no i understand that but the question i'm sort of pursuing this issue of what other facts would be developed concerning specifically the issue of materiality and whether this disclosure would be necessary to make the statement not misleading in the context in which it appeared should have been disclosed the fact that  wasn't disclosed we know that today over ten so that's already in the record so ready to record is there anything else that would be in the record on that question i don't think so at this time so so then your position is that we can't make that determination only the district that any time there's a question materiality it survives all motion to dismiss it obscene in this business if a case because we actually have factual support we have evidence of what goldman sachs did what the board received and we have evidence that that was not shared with the shareholders so we do have a specific thinking also saying that you wouldn't have to do any further factual development on remand regarding materiality is that right that's correct for fo needs to be developed in order for the court to rule that summary judgment about materiality i think you would one testimonial to supporting what the board understood the analysis to me what about judge graber spline the question is what a reasonable investor would understand but also importantly even if this court were to proceed with c interim fortini fourteen before should have a private cause of action because it's identical to fourteen a in fact the language is it's similar has the same words protecting the investors and there's one case directly on point which is the elect electric specialty company versus international controls and their second circuit affirmed the district court's there is any deficiency in plaintiff's case i'll be referring to that as the short circuit evaluation technique given the computer based aspects of the case now at this point there would be no reason for the court to go beyond the one issue it needs to address to resolve this appeal there would be no need of learned counsel advocates for issues to be addressed regarding enter materiality and implied rights of action the single issue is falsity in other words there is no actionable oh mission and the three documents in only three that need to be reviewed are the financial advisors goldman's presentation to the board and he likes his tender offer record recommendations statement in of course the amended i don't understand that well where well it is it is the district when judge carney looked at this he said false misleading misrepresentation and omissions now it's very difficult to say how do you have a false omission did you argue this before church carney excuse me did you argue this before church carney false omissions yes before just we talked about omissions itself and  said that given the ninth circuit given this court view the traditional analysis could be collapsed into one but he the statute doesn't appear to require falsity in the omissions context it requires that court ok let's go back then look at the omission in what i'll call a more traditional analysis and that is plaintiff argues that our recommendation statement is false and misleading why because no represents is made to the chart we need to go back and find a contradiction this is where i think the we we look at falsity we have to find something in the recommendation well the issue i mean to cut to the chase think the issue is that while the percentage premium percentage was within the normal range it was a low average below the mean and below an sachs was that the offer was fair for a variety of reasons not all of them having to do with the premium percentage your honor i think there may be a misunderstanding here because of plaintiff's characterization of the ok if we focus on number one this chart supports the tender offer it falls within even if we assume that this is any alexa's space and it is not put even if we assume that that chart was comparable for which it's not and nowhere in the analysis either of goldman sachs or the summary of the analysis by emil x do they state otherwise so what happens we're still within the range of premiums so number one we are within the range of goldman sachs comes back and says this is fair which is what the shareholders need to know but more importantly more importantly here what is the rule that plain absolute that now emulex is not being faulted by plaintiff for saying anything wrong in its recommendation statement no in fact they believe that all of our facts are literally true but to win don't you have to on materiality don't you have to convince us that as a matter of  law not fact as a matter of law no reasonable investor would want that information that is correct your honor however no reasonable it would give me but and i know i'm interrupting but the end is that your position basically that no reasonable investor would find that material because it's a fair comparable well let's go back though to ts see it's not whether or not the reasonable investor and i apologize for not parsing words but looking at the language of d e s c that's fine ok yes he says there must be a substantial likelihood that the disclosure of the omitted factor would have been viewed by the reasonable investor as having significantly altered the total mix of information and i think the cases i know the cases said make clear it's not whether or not a reasonable investor this is something that would look at or they would do shareholder surveys and i don't know i don't know but i even if the standard is significantly altered the next i sent out a question why is that again while someone may be able to tendering expert who is going to state that this will or will not alter the total mix whether it is the district court or the justices on this panel we do not check common sense at the door because we can look at the undisputed facts contained in this record and remember plaintiff pat the opportunity for discovery because they threatened to  injunction and we produced the board book we produced the minutes and the best they could come up with was this chart now they don't need nor does this court come back and looking at the chart from an unrelated industry sector where we fall within the range of the premiums need to go back and say what would how would the reasonable investor view it through the use of expert testimony but rather using all of our common sense and i say common sense because this chart supports exactly what  the premium as substantial never touted the premium as high never to how did the premium as above average and that's what i really want to focus on plaintiff says well you used the word umpteen times we'll of course we did but what is the investor looking for the investors looking to see is that premium an actual premium and how was emea lacks performing not people in another was appropriate the question is does this chart add anything to the total mix and i think at this point this court can say no it doesn't what does it do if before your look at is an entire different investor protection scheme as opposed to the thirty four act secondary market activities but more importantly we look at this court's ruling both  and we come back and say the exact language in ten b five b is the language we're looking at in section and section fourteen and i think that's important because we're looking at misrepresentations in omissions where not what about an error and i mean it seems like it held that the plain language i think it was seventeen to is identical to the fortini which was modeled on rule ten b five and if we go to tempe five b we find the same language there there was no need to depart in fortini and parse the language because the statute was based on ten the five if there is no need to go to the thirty three act in section seventeen essay in order to parse the language no matter how nicely we want to lay out the statute it's still the same sentence and it would make no sense where neither congress nor any other commentator came down and said wait a second we're now going to that  and have a negligent standard on the other especially when we have a site enters standard through invidia and zuko which it plies to both misrepresentations and omissions as well as well jo doesn't seem like it's rooted in the analysis of the plain language they're just trying to see what your view was is of that i think you just comparing the super circuits to look at this issue just sort of compared but never did their own independent investigation or analysis of whether or not that language was rooted in the statute and i think the reason why we don't see a lot of it is because we don't have that history we don't have been and so we have to go back and we have to rely on subsequent case law interpretation from the circuits even if i concede that we do not have we do not have a rooted in the language we now have it rooted in the language we have all the other circuits we have all that district courts within this is really seems like and we're not making this up in the briefing i just want to give you a chance to respond to it but what it feels is hike is that issues of policy ok the diff we did not mention policy in this argument rely on the text of the statute what i want to do is get away we are going back to the actual words of the statue we're not asking the court to follow out of fellowship the other circuits are simply because they have gone one way so should this court we are going back not policy but the actual words of the statute and we are comparing those words applied b we are coming back and saying there makes knows it makes no sense to have a statute which focuses on the conduct of the parties section fourteen as well as tenby five and it makes no sense for this court then to leap over to seventeen essay which does not have the same policy considerations and talks instead about money lost due to misrepresentations and omissions different words at that point if we go back to the actual words i don't think we're going to see it in the legislative history but if we go back to the actual words those and we weren't aware of it do you have something you knew about o dependent should be excused whatever you decide on the underlying merits of the issues you're going back and forth here for two reasons one is as plain as can see it in their reply footnote thirteen they have an alleged scienter against our clients second on the negligence standard that you're debating argument we didn't make the statements under janice this is the language of the statute fortini that's at issue here requires that we make a statement we were the acquiring company we didn't make the statement if you look at janice even substantial assistance is enough there's no or that we were either negligent or scienter the only coming out on the out on materiality issue you're talking about i believe all the information in the missing chart was public so i think the hardest question you have to wrestle with is can you send it back regardless how decide the science or i wanted to know what wouldn't a salary be for an engineer a doctor or an attorney you would look at a comparable analysis for each sector but if you want to ask how much money will you get when you change jobs it doesn't matter if you're a doctor a lawyer or an engineer you look at