are three primary reasons that you should do this first of all res judicata applies there was no fraudulent concealment well before the end of the first case and mr pierce's other firm of defenses years issued by the lexington resources were delivered to him and he then resold them through a conduit new fort which was one of the parties inside your case and which was one of the associated persons of mr pierce in the first case general rob was another one of the offshore companies referred to in the first case in the y p as the associates of peers the revenue sought to be discouraged in the second case of seven him to identify every single stock transactions that newport conducted over that period of time he should have filed a twenty i'm sorry a form for general because well he did not so the commission activities in which he engages in answers to questions is filings were could be characterized as fragile and concealment in the abstract but instead your position is you knew everything before the case and so we just can't don't have to bring all violations to go but that's that's correct your honor and they chose not to do that at the outset so what we have a problem with is their position in the second case because at the close of the  pertaining to the trading in the account so you were ok rotters the fact that you have evidence that would support both individual water illusion i don't see much i'm not sure i understand your legal prescription against that  you can have evidence yes your honor that crosses over both exactly merely because you use the evidence in a separate independent brought a separate independent violation in support of your first one doesn't mean that you're not barred from pursuing the second where's i you where it where you want to go in stare decisis i mean so what off a then they had the same you believe in what i'm trying to say is so you're answering what my concerns are you can have evidence from a lot of claims that you're going to bring is that this in force from an agency who has the authority to pursue enforcement action one of the one of the one they don't have to join them they can take them one at a time and that's my understanding right and my understanding use him may be evidence with respect to those many claims that you would you would offer him a number of them my further understanding is because you use evidence in the first one that you're going to use in the and it had a rule for count which says you better appeal within twenty one days or that order by the j's going to become final and so mr parrish wanted to back up on one thing response to some questions from judge edwards and that is you said they could bring one claim at a time i suppose in the civil proceeding and civil litigation in regular federal court they could bring one action for one sale and another action the next day for another sale but if they choose in federal court to come in and group all of these sales together and treat them as a common violation our common basis for our collective basis for violation t collect a collection of activities for which there are certain liability say they said we're going to do every sale for two thousand to two thousand two but then left out three from under the case appropriately named chapel hill group out of the circuit certainly that would be the hard test that would be applied to bar the one where you can see that they could have brought all of these one in the time because they made a decision up front to group them that's what we're going to litigate and so i thought your oyster card argument is that's fine then you've got to get everything that's within that group and we have to decide whether the second case claims or within that group well  kind of might not apply for example if the parties were not the city for twenty days did not derive from the common nucleus of operating fact if there were different facts and different legal theories supporting different points if a new statute generated a new remedy after the first set of plaintiffs they could come back we've discussed those exceptions in our brief unfortunately for the commission that's not the case they chose to make the claim in their proceeding in effect picture the commission as a to me but they did your honor they made it and they had because she knows a good suit crannies of securities law that just reach out and says well they all have a special master they can we out all the facts and handle these legal arguments and save me a lot of time and then some party takes the special master and makes a claim before the special master so gets evidence before the special master and says why the second special master i've got more evidence and i've got another crying and the special master said i'll take your evidence but you know for that that new client you better go to the reverse in the commission's proceedings you have a factual hearing and then you have ample post hearing briefs and this point was made in a motion after the hearing way before the post's hearing briefs were filed so the should get an extra seven and a half million dollars a discouragement the the a o j only discouraged two point one million dollars not nine point six million dollars mr pierce looked at the rules and he said you know these are rules just like the federal court has rules and we've got to follow along but you know if we appeal the two point one million dollars fortune awarded all the complaints we have about getting the evidence out only to shine they might actually cross appeal and they might get an additional seven and a half million because after all they're before the commission the commission hasn't even ruled yet and so mr pearce said i better play by the rules and i want to sacrifice my appeal rights so that i can get finality and he  paid the judgment resulting from the final word or the division had the same obligation to follow the rules and appeal the amount of the discouragement or if they got two point one million was not sufficient remediation to serve the public interest then they were the ones charged with knowledge and they certainly have the expertise and they certainly know the rules and they could have appealed within twenty days in which case then they would have said no mr pearce you better cross appeal or we're going to get nine point six million out of this and then you would have said maybe not maybe you'll get zero and you know what maybe there would have been a settlement for two million dollars what's really unfair about this is that by following the commission's rules mr h so they got those records and so the commission was able to bring the claim now the question becomes should the commission follow rules that didn't forces in the public interest itself or should we have a government agency that can create its own rules not play by its own rules and exploiting people who actually do follow the rules and it's not like they didn't get their pound of flesh from mr pierce because two point one million dollars said it's it's ruling is entirely consistent with the application of race judicata and the federal courts given the application of various you know kind of the federal courts is not itself particularly consistent little more flexibility you know there investigatory things are ongoing it can be things can change quickly and we need to have some flexibility and barring some one arguing that violates the statute or the constitution they would have that and we wouldn't have to backwards maybe the section thirteen required we needed volumes of sales so you actually used newport and you had to use it or at least you seemingly idea in the mail to rely on that as a basis for finding the violation of the first case so you already had sort of a corporate responsibility as stablish in the first case that's why your whole second case was largely collateral estoppel i'm not i'm not sure that's exactly right your honor i think that your number one  in general and i read that the largest in the first proceeding used the evidence that pierce was the beneficial owner of wasn't necessary stang said yes it is a further factor but i think the point is that the evidence that yours is a beneficial on report isn't the same as the trading that was subsequently conducted to newport in general that's actually have you impose it on yourselves a higher responsibility and my colleagues are absolutely right if you really needed to my view is that i'm i'm surprised that he would take this on but if you really have taken on just to do them both as long as you are in the process of proving his control over new court jenny route as part of proving that case and these sales my understanding were all going on at the same time they were he wasn't differentiate he was just selling stocks some personal some from the corporate account there is no differentiation in who he whom he approached the tactics he used and he was so involved in the same time in that same time period right now i think you're right that the question is whether they  measure concealment do we look at the beginning of the case to look at the end of discovery or end of the fact period or end of the proceeding because i think his argument is long before you filed your post here in briefs in this case you had there was no fraudulent concealment it was done it was revealed and so i think i think the question of when we have to look for fragile concealment is very important to you i agree your honor and that's why  friend made about this type of sort of tag team strategy by the ses c really being unfair to the people to the defendants in the case who come in they say look here's what they're coming after me on their second two million we got this time period they know about new car and they know about johnny route and this is what they're seeking for this time period i make decisions based on how i can test what i can test in this case where i feel make all these decisions and then lo and behold once i'm done with that i write my check i think i'm done you have no way we've got a whole lot more coming how how how how does the commission deal with that unfairness argument you trying to have your cake and eat it too depending on how you look at this record let's see if we can sneak it body and and then all today we didn't stall the let's pursue it later i don't i don't think so you know why identical the legal theories are identical on the seven point five million dollar plane even under their best case of a mission wiley but they really discuss allied signal along with that and as we showed in our briefs allied signal the test under the reasoning there was was there a claim was actually made in a supplemental pleading after the first case had begun a commotion to an inner motion to supplement the you know you're the one that comes to mind first your honour's employer where the federal district court did not grant a motion for leave to amend to add some claims that were related to the claims sought to men by motion in the first case and in the first case those claims were denied by the federal district court judge i think he said you're too late you're past the deadline that sounds familiar here doesn't it fraudulent concealment of a claim that is actually asserted in pleading those exact words used in those cases you're thinking of cases the minute