the first bush administration in one thousand nine hundred ninety and the procedure brought this case to trial the nine hundred ninety seven the decision was issued by the administrative law judge into only nine hundred ninety nine and four years later there was practically speaking and that is an issue with discords meant amount it's a very long record in terms of the opinion of the day in the n c c almost eighty two pages of factual findings conclusion law over one hundred footnotes so terribly complex specific and sometimes overlapping statutory violations that frankly sometimes even confuse me when i go back and read the record in terms of how many there were were not here to challenge the findings of responsibility the findings of violations are only here to talk about the discourse and then there are three things we were raised to this court you know are brief it's important to know that in terms of discourse me because of the length of time which i've already emphasized and in particular the length of time between the trial on this matter and the feel being heard four years after the opinion and six years after the trial there's a substantial amount of prejudgment proven this case for every dollar of discouragement that could be removed from the order of the s e c there's approximately fifty five cents of discourse mean attached to each dollar which would make for example one of the issues for raising today which we call the commissions the trailing commissions issue which is approximately two hundred ninety thousand dollars of alleged wrongful ill gotten gains that number would certainly give bigger in fact it would become somewhere around four hundred forty thousand dollars of the total war when you look at the interest the issues have been well briefed by the parties and i think that they are well before the core i have a few comments i want to make in response to the responsibility who's trying to drive before this court and whether it should be raised to the n c c i concede that that is a strong argument that the commission has made and i only want to say to this court that again because of the passage of it seemed to come to this court would be a much more expeditious method number two we had no concern or maybe i should say we had concern but we did not challenge the decision of the commission  a compassionate and humanitarian act i believe the commission must have had evidence in front of it given the basis for that decision what we felt happened however was that that compassion had a spillover effect on the results of the other of whether we had any opportunity to file for a motion for some form of reconsideration but typically for reconsideration in either newly discovered facts were changed in the law we were going to challenge the decision on mr se it was unclear whether by making such a motion for reconsideration we'd be able to accomplish anything second the case that the commission sizes your heart in august i just want to point out that case by the d c circuit is a case in which because of the jurisdictional impediment of one commissioner being seated who perhaps shouldn't have heard the case because he hadn't been sworn in the entire proceeding was said to be avoid what they were seeking was a rehearing the whole not we never argument but i struggle with from an equitable standpoint since disgorgement executive because it would mean that the f c c would have discretion to go after the least well heeled the least funded respondents to get the entire amount at least two or three others you know without any any relief being sought therefore it's hard to answer the question because i don't know hollywood collector proposed to collect clearly the sensible equitable thing is to take a cases or any lore to understand how that would work because again that would leave it to the commission's discretion to simply pick one responded and try to get all of that respondent legally the case law says you're responsible on with the others we  at this service standard and he'd only decision with a need to be reasonable approximation it was pretty easy to approximate what happened when they let mr sergey out one third of the obligation in mathematical terms was being left out because and i will point out there are only four lines in the fifty two screws thirty two page opinion of the commission dealing mr serjeant do not say that he was out of money they don't say anything about his financial circumstances and again well it's compassionate there is fair is a lot of discretion for the prosecutors to pick their targets and to put their charges here however they've made the choice they've gotten the case tried they've got in the joint and several of war now we're back to the question of how you collect it what kind of disc confess to this court even after living with this case for eight years it is a complicated issue the commission correctly points out in their brief that we incorrectly characterize the i c c as finding that my two clients acceptable categories of expenses can you have you know marking expense now that a lot of this case consumed the issue of whether transfer agent fees auditors fees and certain without being trite they remind me of the old breath mint canting those advertisement with the dichotomy can they be posed or the one of one time in one of the other times and of what we are asking for here in this by the way is one hundred twenty one thousand the number of one hundred twenty one thousand is one half of a larger number and that number is cut in half because there had been as part of the marketing plan a written proposal to the shareholders of the board and that world money managers the respondent would only pick up one half of these markings these the other half would be picked up by the fine that's why the commission cut that in half and we incorrectly question why they did that in our brief i now see why they did that it was simply i find no case certainly nothing against one thing you want to make it says the commission should not consider the money that comes in to the alleged scheme or the alleged wrongful taking the hops that's the amount that was allegedly  gotten we have evidence in the records not disputed in the administrative law judge and the commission recognized in their brief i'm sorry in their opinion that approximately two hundred ninety thousand dollars of commissions came back into  income in other words it was an income item from the sale of a mutual fund product no other case whether it's pacific bank work or happily both cited by the commission and no other case you also have the issue of the alleged ill exactly the good purposes of this of this list broker dealer by the way was not void it was not wrongful broker dealers the commission members found it that the fact that it existed was wrong or that it did anything wrong  roker it was only by the mutual fund it had a valid corporate life and it had things it was going to do now the commission has found and were not challenging that while creating that company to respond instead all to your motives the commission you could put a hundred thousand dollars in and you could set up a brokerage you know that do in fact do that and recognizing that fact the commission said well we're not required to sportsman of the hundred thousand dollars  legitimately have been used we're only going to require scorchingly of the over capitalization the amount above and beyond what the what the testimony that that hundred thousand dollars would that have carried the operation forever or just for the initial period commissions for the i think ultimately the answer here is that the burden rests on the petitioners to show that in fact the reasonable approximation commission made  burden of showing these commissions approximation is not reasonable and given if they haven't done that i think what you'll be doing is you'd be saying well they haven't heard of the burden let's go back and give them a second chance pairing their part gets its chance and and you make the record the record is where it is and case proceeds on that basis this case is present on for a long time in addition certainly hadn't been an opportunity to bring forward any argument to show that the trailing commissions were spent i think we probably adequately covered the issue of trailing commissions however i would like to emphasize that certainly this money never came back to the shareholders  straight to his pocket again i'd like to i'd like to conclude by stressing that there is no challenge here to the commission's findings of fact the only challenge is to the sanctions and the standard and  you're just briefly there were a few points i just wanted to respond to my mind my post the council of first if i heard him correctly he seemed to suggest that more should be required than just giving the board of directors the of the staff of the i did team not the senior manager not the audit report make the comment the treatment of a particular expenses aggressive does that have to be reported at what point do those who run the finest have to decide every was a serious question about the use of proceeds or an accounting for expenses it would be footnoted in the reporting it was not a number to the question of whether the commission of voice the commission  declined or did not decide the issue of the twelve the one piece i think it's was a little bit aside the point they've kind of avoided getting to it by hyper state council correctly but we don't need to get to that because they violated