93 H3vlgiu2 ih judgment motion. Your Honor ruled against us on a couple of 2 points, but your Honor was silent with respect to this 3 particular argument, argument No. 4 -- 4 THE COURT: Ah. 5 MS. MENNINGER: -- in your ruling. 6 THE COURT: And that was? 7 MS. MENNINGER: Our plaintiff's statement two days 8 after the -- 9 THE, COURT: The one om the street. 10 MS. MENNINGER: Exactly. That in that statement, our apa: client said, we stand by the statement, or, I am referring to 1 the statement that we made. 13 THE COURT: Yes, yes, yes. Okay. I'm just trying to 14 figure it out. So ina very nice, polite way, you're telling 15 me I failed to deal with that motion of yours. 16 MS. MENNINGER: That's correct, your Honor. uy THE COURT: So it's still out there. 18 MS. MENNINGER: Still out there. There was no 19 response by plaintiff to that argument is our point; that in 20 their response to summary judgment, they didn't mention it at 21 all. 22 THE COURT: Well, that's probably where I missed it. 23 MS. MENNINGER: Exactly. So I think the fact that 24 they failed to respond to it then, as your Honor has held in 25 other cases, has consequences; namely, it's a conceded point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 HOUSE_OVERSIGHT_011396