program and there were there were several phone conversation with this really of course of your mediation program and we were unable to resolve the matter in harm's inverses smith this court set out the elements for aiding and abetting liability under the securities fraud statutes and those are the existence of a primary wrong actual knowledge by the aider and abettor of the wrong in his or her rol diluted standard there is simply not enough evidence in the record to support imposition of the sanctions that were imposed in this case when the crazy very bring me home then because we're talking about the july letter for the investors that's correct and in july a letter to the investors had some wording which i won't try to restart you know what it is relative to the shares of the lithuanian bank that's right then maybe better clear up for me what the record shows as to the exact status of the shares i can't pronounce her name the lady that owned the shares were to be sold to the investors the record shows is that a had suspicions the state of the record is that no one knew anything that the evidence was in conflict and if they were blind to the evidence that they were getting or not getting from the seller and from the li and bank and from the non activity they were just we were blind to all that they were they were blind as to what the meaning of the various conflicting pieces of evidence was there was a series of reports coming back and forth there were reports from that european bank of resource and development saying that she had twenty six thousand shares there were reports saying that she had sold shares the reports saying that she had shares there was a report saying she didn't have shares  know investors that they told the they told the investors that there was a problem in getting the shares and they were trying to resolve that problem because they didn't know what happened this was one eyed this letter was one item  expert that the fund doesn't have the shares and c v was working diligently as the commission recognised to get to the bottom of the situation to get the shares to find out what the problem was after that letter w sent out there was additional evidence in the record his communications with mark zandi who's on the supervisory counsel of the bank as mr fuller was on the supervisory counsel the bank and two days before the letter was sent out there's evidence in the record that the letter either the girlfriend or somehow associated with one of the general partners that's correct and she was accessible that's correct ok and yet with all that accessibility how much time went from the time that the money was transferred to two hundred thirty thousand dollars to the date when the letter was sent out the july letter how much time expended three three months and during that three months they never of wave of the pin down even though they paid the money where the shares were what the i certainly agree that from this point in time that knowing what we know now knowing the facts that we know now looking back that letter certainly could have included more information about what the market value he was told the value of the shares at market yet and he said there's a problem getting the shares but if the theory that the problem was that they're never going to get the share value in a market is irrelevant at that point it's highly deceptive is that now it's not because he disclosed the problem in make the letter misleading this wasn't a period of time where anybody could even invest in the fund the investors were locked up nobody relied upon this and the investors were in constant communication with c v finding out what was going on so the letter for misleading the commission would be able to impose liability under two of six who because two of six two is a passive regulation anything viewed from the point of view of the investors if it could possibly mislead an investor under two zero six two that kind of conduct can be regulated that's the type of conduct where you can look back to see yes would it have been better if the investors got more sanctions under to us next one were two zero six one sanctions the cease and desist order and the level two and the tier two penalty the financial penalty those are two zero six one sanctions so the commission wasn't clear in making the distinction between two and six one and two all six two and that's the difference between sending out a letter where you're sitting where you're sitting down and you're trying to mislead people that's a violation of two all six one and that didn't happen the commission found this was only a matter of suspicion a conclusion of law by the commission if i'm reading this correctly it is concluded that c b willfully aided and abetted morgan foolery violations of fuel six through correct but when if you look at what the commission decided they had to use for the standard they talked about it general awareness of the problem they didn't talk about substantial assistance and they didn't talk about whole different world you're saying a footnote should be disregarded now i'm not saying they should be disregarded i'm saying the footnote shows that there's a difference in the standards but when the commission put in their statement of the law they talk about a general awareness commission didn't make a finding of c enter to the contrary the commission found specifically furthermore it's undisputed that mr speeding knew at the time he sent off a letter that the fine in fact did not have to shares the misrepresentation here it's not merely the fact that the fund didn't have the shares it was also the effect problem problem as he calls it was going the shares and we of course dispute that he did make that adequate disclosure of that regard it's the letter still would have been materially misleading because it tells the investors indeed misleading investors even taking into account th the point that well subs to subsequent to my moment of panic when i wrote an internal memo on july one i talked to my boss and he reassured me and said everything was going to be ok now the commission looked at the entire record here and made finding that there was a problem and yet his excuses but the boss of don't worry about i guess that's what i'm going to have to do surely think you're seems to be the fact if i'm not wrong that he had made his own determination before that if there's a problem the shares right here there's been a fr it would depend on whether he had a reasonable basis to believe boss and meet with the commission found this case given all the four spawns he'd been in with eastern europeans all the attempts he'd make it to straighten out the fact that he kept running into two blank walls in that context it was there was no justification whatsoever for his relying on this information and reassurance from the boss says everything's going to be ok when you get this straightened out i mean one can imagine a different set of facts where you might come to a different conclusion and i guess one thing is that this would be it's a case by case thing i don't think you can someone who is going to make this representation to investors has a variety of sources of information and what i'm saying i someone else would say something that turned out to be untrue but at the time the fed person made statement it was reasonable for him to think that it was true but that's that's just not the case here as we said commission consider all these issues and decided that it's not the evidence putting him on or if there were all these red flags popping up all over the place if you heard like didn't exist you weren't right in the counsel's argument he didn't have any intent to deceive even though you're walking right into his argument from what i can have the shares and we're down four percent for the quarter leading an investor to believe that even after the problem they're down only four percent for the quarter when in fact if you take into account this problem we're down to at least sixty percent for the  the evidence shows that he thought he'd been provided we should have the charlie inadequate even assuming for the sake of argument that disclosure with an adequate he still lied about the effect of the problem on the funds balance sheet if you told the sheriff look we've got this problem we're sixty percent for the quarter because of the problems but we're going to get the problem solved and then we'll be down only four percent that would have been different case but that's not what he did he said we're going to only four percent didn't get an inkling of the huge effect that this problem was going to have would further say that even if you decided to this case well reasoned it is quite distinct from the instant case this case involves a situation report creation wanted to make a conditional tender offer and the commission said it couldn't impose that condition on the tender offer and the company eventually quote withdrew the offending position once the commission has been its official position clear  seven of the commission's decision stevie's arguments to us demonstrate a lack of appreciation for his responsibility as the associated person of an investment advisor and further down on page seven commissions as  future in contrast here you have this you see me saying continuing to argue to the commission look i don't think i did anything wrong and when someone says that i think the commission is justified in drawing the inference that there is a possible so that cv could make known what his concerns were he made those concerns known to his lawyer he made it known in fund management he had a conversation with fund management and fund management gave him specific reason overblown specifically fuller told him one that he was on the management council of a b b eight age and he would be able to get the shares back to full or told them that problems like this are not unanticipated in eastern europe he's had in the past and he's been able to and even more importantly as the court was asking questions before about the standard of review the commission keeps arguing that the in the opinion of the commission the commission found that c v knew the opinion of the commission did not find that stevie knew that he didn't have the shares the commission only found the c v was suspicious it's clear that he was suspicious and he was he was acting to run those suspicions to ground to shares the commission recognised that he was diligently working when you were talking about draft time are you talking about of july one or the july one memo was a draft memo and it's so important to the commission that they've included seven different versions of in the supplemental acts of the record there i'm satisfied with the one version that we provided to the court it was never presented to anyone c v admitted he prepared it he admitted he discussed that he was trying to make a case and he was convinced saw his conversation with management that his case wasn't good he wasn't convinced that those shares were gone until there was a confrontation with kobe and could bait finally admitted in late september that she had sold the shares in the meantime there's communication with the bay there was communication with conveys boyfriend who was one of the managers of the funds and seat and stock was a very persuasive person c v talked to him directly he said the shares were going to be over there was this was a state of uncertain information cv was suspicious he was rightfully suspicious but he didn't know the extent of the problem until late sept until late september that's that's very clear from the evidence that's very clear from what the commission found in addition when you look at the commission order mr pate just argued that the commission found that seat seaview willfully aided and abetted and was the cause of morgan fuller's violations to the commission did in fact say that but when you look at how the commission defined it they say that c v had a general awareness of or knew that his actions were part of an overall activity that was improper they're not saying that he had to know he only had to have a general awareness they specifically found only that he was suspicious to use the appropriate standard which this court has decided that c v has to participate has to know has to know these misleading people that's what this court has to find the commission didn't pine that the commission of posed the wrong level of sanctions based upon a wrong level of the science of rating in a vetting live this there are no question