That would be a very simple answer - if the data was available, that is. There is zero indication that any data on primary endpoints was available, since it's a double-blind trial and it had not been unblinded at that point. In fact, one of the big concessions from the FDA was that CYDY could unblind data on the first 40 and conduct interim endpoint analysis.
Plain and simple, the FDA didn't have the primary endpoint data on 10/12. Unless we're all being blatantly and openly lied to by both the company and the FDA. If you want to argue that they were suggesting that the open label portion of the trial (24 weeks in conjunction with optimized background HAART) is what the FDA was looking at, I can accept that as plausible and still disagree with you.