First, there is no basis to Mr. Paniccia’s allegation that
the impugned statements contained misrepresentations because
they did not disclose that the SEC had demanded that MDC use
the term “adjusted EBITDA” instead of EBITDA. The evidence is
that MDC did disclose its exchange of correspondence with SEC,
which correspondence was publicly filed on EDGAR at the time it
was made and thus was publicly available before the commencement of the statutory leave period.
 Second, MDC’s EBITDA reporting was not false or mis-
leading. It disclosed to investors how it calculated EBITDA. I
agree with Judge Sullivan’s analysis of this issue. He stated:
The fact that a plaintiff may “take issue with the way a company chooses to
calculate these metrics . . . is of no moment,” because “it is not fraudulent for
a reporting entity to calculate metrics that,” like EBITDA, “are not defined
under GAAP,” nor is it fraudulent for the company to “take (or not take) into
account whatever factors the reporting entity thinks appropriate — as long as
the public is told exactly what the company is doing.” Id. Unless Plaintiffs can
show that MDC somehow misled investors about how it actually calculated
EBITDA, which they have not, there can be no claim for fraud.
Plaintiffs’ allegation that MDC “altered the components of its EBITDA
metric to further inflate its financial performance” [. . .] is similarly deficient.
The allegation is conclusory, and in any event, “there is nothing inherently
improper . . . about reporting a positive EBITDA while simultaneously reporting a GAAP net loss” because “the two are entirely different measures.”
Indeed, the fact that MDC included a reconciliation of adjusted EBITDA to
GAAP metrics in each of its earnings releases, see, e.g., [. . .] (Form 8-K) (Feb.
23, 2015), belies Plaintiffs’ conclusory assertion that MDC used adjusted
EBITDA to mask GAAP losses.
 Third, the alleged EBITDA misrepresentation occurred
before the statutory leave period, and there is no evidence of any
misrepresentation during the statutory leave period as it relates
to EBITDA. MDC changed its EBITDA reporting in April 2014,
and has not changed it again since then.
 Fourth, there was no public correction with respect to
EBITDA at the end of the statutory leave period — in the April
27, 2015 statement or otherwise. This element of the statutory
cause of action has not even been pled.
 In the case at bar, having considered all the evidence and
having regard to the limitations of the motions process, Mr.
Paniccia’s case based on the EBITDA misrepresentation is so
weak, that it has no reasonable possibility of success.
5. Mr. Nadal’s compensation misrepresentation
 Turning to the allegations of misrepresentations with
respect to Mr. Nadal’s compensation, none of the impugned
statements contained any false statements about Mr. Nadal’s