In this task, you will be shown a prompt from a judicial decision and multiple holding statements derived from citations following text in a legal decision.  Holdings represent the governing legal rule when the law is applied to a particular set of facts. There are five answer choices for each citing text. The correct answer is the holding statement that corresponds to the citing text. The four incorrect answers are other holding statements. You should find the correct option. There is a <HOLDING> token in the position of the citing text prompt where the holding statement was extracted.

[EX Q]: lease, for the first time in his reply brief, thus, he has waived it. In most circumstances a litigant who fails to raise an argument until his reply brief wül be deemed to have waived that argument. Wilson v. O’Leary, 895 F.2d 378, 384 (7th Cir. 1990). This case is before us, however, on a motion for dismissal pursuant to Rule 12(b)(6). The inquiry we are faced with is whether the plaintiff can prove any set of facts to support his allegation. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). This court has held that when reviewing Rule 12(b)6) motions, we wül consider new factual allegations raised for the first time on appeal provided they are consistent with the complaint. See Hrubec v. National R.R. Passenger Corp., 981 F.2d 962, 963-64 (7th Cir.1992) (<HOLDING>); Dawson v. General Motors Corp., 977 F.2d 369, 
 Holding statements: (A) holding that a court in deciding a rule 12b6 motion may consider a document that is incorporated by reference into the complaint (B) holding that the essential inquiry in conversion of a rule 12b6 motion to a rule 56 motion is whether the appellant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings (C) holding that a plaintiff may attempt to survive a rule 12b6 motion by adding essential new facts in a brief on appeal (D) holding that class claims that fail to meet the requirements of rule 23 may be properly dismissed by granting a rule 12b6 motion (E) holding that plaintiff cannot introduce new allegations or new facts in opposition to a motion to dismiss
[EX A]: (C)

[EX Q]: of the Licenses; revocation is made explicit in a filing before the bankruptcy court (which filing is not itself an order) and is implicit in the Public Notice announcing the re-auction of the Licenses previously held by NextWave. Nevertheless, as this Court's prior opinion makes clear, we think that the FCC action in question is unmistakably regulatory in nature. But even if the FCC’s acts do not amount to "decisions” or "orders” of the Commission, subject to the jurisdiction of the courts of appeals, that would not expose the FCC's acts to review in the bankruptcy court. A regulatory action short of a decision or order is an exercise of regulatory discretion that is not subject to review. See Bethesda-Chevy Chase Broadcasters, Inc. v. FCC, 385 F.2d 967, 968 (D.C.Cir.1967) (<HOLDING>); see also, e.g., Telecommunications Research & 
 Holding statements: (A) holding allegation made in enforcement suit does not impose the kind of legal obligation with which the finality doctrine is concerned (B) holding that obligation to pay pension benefits gave rise to a constructive trust relationship and obligation was not discharged in bankruptcy (C) holding that insurance obligation was primary to indemnity obligation (D) holding that a regulatory action that did not impose an obligation deny a right or fix a legal relationship was not reviewable (E) holding erroneous exclusion of hearsay did not deny defendant a substantial right
[EX A]: (D)

[EX Q]: Hook’s unsafe workplace claim was “totally independent from the existence and administration of’ the ERISA plan. 38 F.3d at 784. The claim for negligent misrepresentation was not preempted “because it neither sought benefits under the plan nor alleged improper processing of benefits.” Id. A few months after the decision in Hook, the court again held that an employee’s common law occupational injury claim did not relate to an employer’s ERISA plan. Tex. Health Enters., Inc. v. Reece, 44 F.3d 243, 245 (5th Cir.1994). In Smith v. Texas Children’s Hospital, the court held that preemption did not apply to a plaintiffs fraudulent inducement claim because the claim was not necessarily dependent upon the plaintiffs rights under the ERISA plan. 84 F.3d 152, 155 (5th Cir.1996). The h Cir.1990) (<HOLDING>); Nunez v. Wyatt Cafeterias, Inc., 771 F.Supp. 
 Holding statements: (A) holding that insurers failure to deny existence of insurance coverage under policy at issue was to admit that coverage existed (B) holding that a legal malpractice insurance policy that limited coverage to suits seeking damages and defined damages as excluding sanctions did not provide coverage for a sanctions motion against the insured (C) holding that the plaintiffs asserted legal basis for coverage is irrelevant to the determination of whether the insurance policy provides coverage and instead looking to the facts underlying the claim for coverage (D) holding claim that insurance agent fraudulently induced insured to surrender coverage under existing policy to participate in erisa plan which did not provide promised coverage related to that plan only indirectly (E) holding that plan administrator of an erisa health plan did not have to anticipate the confusion of a plan participant
[EX A]:
(D)