above and we will attempt to reserve two minutes for a repeat of and i would like to focus my argument this morning on two issues st that the district court committed reversible error when it granted summary judgment penalties and we will ask the court respectfully to reverse the district court's order granting summary judgment and remand the case to the district court now turning to the st issue i'd like to address the district court don't want you to consider how are those two i'm struggling to see how those two things are related i mean those that that's a distinct ground the thing that you raised in your reply would say that they don't have it right even are you there it's gone the othe issue in three points st let me talk about why i don't think it and i want to address your question but why i think that the district court's order must be reversed regardless of that forfeiture issue and then i'll talk about the it was not hard that it was harmless rat they haven't they haven't said it was or they never attempted before the district court to satisfy that standard rather than attempt to satisfy the standard they withdrew the e mail essentially the footnote says rather than try to satisfy the standard we're no longer contending that email in response to appellant in response to our arguments were no the f c c said we're no longer contending it's a violation of the securities laws on summary judgment so i never i thought your talk to me about why the court they are if the only issue is their failure to give it up in discovery right that's and that's what i'm trying to address so there's no dispute that they failed to disclose it and so federal of thirty  dollars procedure thirty seven dollars c says it's an automatic bar they cannot use it unless they satisfy the standard of substantially harmless a substantially justified or harmless and the f c c did not attempt to didn't attempt to do so yes you see is the one that has the burden under federal rule of civil procedure thirty seven dollars see it an attempt to satisfy it they couldn't satisfied and as a result the automatic sanction applies  must be reversed on that issue and again there's nor forfeiture or waiver of that issue let me then target what do you what do you think about the idea that the f c c is withdraw all of those two statements at the district court was a concession that your discovery argument was correct i you asking do i think yes you see we drew it no i know you think they withdrew it i'm asking you if you think that is a is an essence a concession that you were right on the discovery issue i do i  think rather than trying to satisfy the standard which the f c c knew it could not satisfy instead they withdrew the e mail and it's because they didn't attempt to satisfy it and i think recognized that they couldn't satisfy it that is why they withdrew it and my question to you is the consequence of that why does that automatically people error if the court itself deems this to be a harmless act of discovery violation in other words if the court decides to rule on to satisfy the standard and i think judge carson is correct yes he she acknowledged essentially it could not satisfy the standard and didn't even attempt to do so and that well no that's that's a different thing than saying i'm not going to i'm not going to address you i don't need this to win and that's the way i read that but i don't need this to win and therefore go ahead court deal with it without the martino in the court decide to consider the marquis but i guess what i'm trying to get at is is there any case  you've got the testimony of victor to i deposed i never asked him about that because it wasn't disclosed in discovery as a potential problem so so if the court's ruling or decision was that it was harmless then i think that's also  to make sure i pass with sufficient time for my my colleague mister holmes to address the remedy but i'm happy to address all six through all my papers i would point to number three so we just talked about wanted to number three is the misrepresentation on march wanted to address here and that is that you know well of course you can't get to liability without a cause and connection between dollars in a remedy but you need to have causal connection to the dollars that are being awarded as a remedy under max on its progeny and that wasn't done here the court i think really tellingly said and we pointed out in our opening brief page forty nine goes on to state exactly which one dollar that is so if there is one misrepresentation that shows a causal link then under the max on articulation of where you get to remedies on that then that should be what ties the actual long full condom and in securing funds they based on that wrongful conduct yet both of those collections of statements related to offerings why would the court be appropriate in determining how much money was made in is that the court found a specific misrepresentation just one so at a minimum shouldn't it be limited to whatever money came in from that point forward shouldn't shouldn't be some kind of a limitation on it that we deal with on this you know the f simply says well we didn't after a showing there was some misrepresentation and i would submit that the max on court and its progeny requires a little more detail than that they can't just simply say there were misrepresentations and that's enough i  would like to reserve some time for revival ok that's fine received for the united states securities and exchange commission i want to go to out the this issue of remedies and start there and then i can circle back to some of the other issues that were that were discussed if there's time that the the amount of one just gains from the u two offerings and it's important to remember here that there were sort of two independent ways that the district court arrived at that distorts minimal there's the anti fraud piece of the case but there's also the i section five piece of the below this idea that well at least you know from that misstatement that that brought the fifteen thousand in on word you know that they should've that that should have been the the amount that was not made below the only argument that was made was that it should be limited to the fifteen thousand dollars because that was the one statement where there was that specific connection but that's not what you know this court requires form for reasonable approximation that's a tracing requirement that's just not found in this court's loss in either the  but for a reasonable approximation of gains that it was the amounts from the offerings based on both sides of the you know both sides of the analysis the anti fraud and the registration provisions and all they came back with was this fifteen thousand tracing argument which is not have to consider this court to reach the decision in this case and they will if you committed its cover violation so that's starting with that framework yeah point why there's nowhere so i think there's nowhere for a couple of different reasons i think st of all i think it's something that you said in your question judgments but it's it's the mate you may not you may consider it's right it was it was left up to the district courts discretion the way i read that footnote is alleged many misstatements again remember there were even more misstatements than what the district  or answer sort of what all the misstatements you know that you that you're that you're relying on here that is true but the way we know this is harmless is the march th statement was identified as materially misleading in the complaint in your complaint but then decide later that in fact it in light of the what it come out that it wasn't material but why wasn't it misleading and what i was specifically focused on is this question of the logic  argument i understand from the appellant is there is a rule the rule says absent a showing of harm harmlessness that this is in error when did you show harm list now either in the district court or on appeal and believe that there would requires the district to make any explicit findings and this is well within the district court's discretion and i think the way we know the best way to read the footnote is because of what the district court didn't write and i think it's fair to read the district  right otherwise you have to impute error to the district court of that that i don't see on the page and i do also want to point out that it is important that even if so even if you get past the ice you know i skip i read into your framework judgments but i do want to reiterate the point we made th says you know he's interacting with defendants argument and says even if i were to agree it doesn't change the liability analysis helpful counsel why don't we why don't you just consider them why don't you just say the st two statements are brief oh i understand but you say it doesn't matter you say four is enough for liability we don't need any we don't even need those two to to win our case so why not concede on and move on i don't leave me to them so in this case i just i think that the i would like know we don't we don't need them when we need them before the district forty so if i if i make an argument as as the as the non movement of the district court and say look here they can't use these these are discovery violation  and you choose not to defend whether they are not and just say look just report you decide i mean haven't you in effect conceded it and at that point the district court shouldn't consider let's i mean that's not that's not disagreeing you're saying i mean jeff occleve in the adversarial process one says you just had a violation and you say i did not and here's why but you didn't do that issue if that is the that these two statements even if even less safe assuming the court here are in making and addressing those two statements your conclusion what ok court at least and now in light of lou if we get nothing else out of the we should get we man to to have the ducks in a legitimate business to experience expense and your response to that that change there that they could have made that or so i think that this is not that a good case for discretion and if there were some sort of suggest in submissions that there was you know a large amount as your hypothetical suggests of business expenses then you know then i think every man might be appropriate even if there was a forfeiture but here  of of us considering lou and possibly remembering are you aware of any cases that we've decided in the past despite what the panel in the raw power case said are you aware of any cases where we've said hey this is a new supreme court case just out wasn't available to the parties at the time of their of their briefing we're going to consider it because i think you're in a position here where we've gone both ways yeah i mean i think i think it i think it depends on the this circuit were considering legitimate business expenses arguments one of the cases that i see my time is up so i can finish this place finish one of the cases that the defendants cite in their own brief for a different proposition had a discussion who's going to take up the mantle you know forty six seconds or thank you your honor i will bravely take up the mantle i would like to turn to an issue that i was asked about and which was also addressed and and and my opponent's argument which is why does it matter if there are these other alleged misrepresentations why does the march th and those two statements in it matter and i think the reason it matters is particularly on remedies i think it matters anyways to liability but particularly on remedies court could not find even under the yes he sees argument could not find discords meant based on the st part of the offering when there were no alleged misrepresentations made so the more misrepresentations or knocked out the more of the offering that simply could not be