rely upon our papers but the issues that are key go to see enter whether or not the transactions were in connection with the alleged misstatements and then first if this court looks to some of the issues that go to senior editor you have to find that mr wilson was either reckless or had intentional conduct and of these issues i would focus  couple of matters as compared to citing the cases which we relied upon in our previous first the appellants were as committed to the investment vehicle as each of the investors in the typical case  some respects get some kind of gain out of the alleged fraud that is the subject of the case law that they are citing mr wilson was as committed in had no gain as each of the investors in this case financially as at risk as the other people well that unfortunately though is inconsistent with their argument as the lower court found that mr wilson was allegedly in control they've tried to essentially say that he exercised all  false the fact of the lack of of terminations of mr wilson alone in his position demonstrates that there is not a consideration that he was gaining in any respect he was investing with a group of family and friends other individuals let's also look if i might just parrot at the group of investors first as a group that were brokers that were also soliciting ups certainly these individuals would have knowledge or presumably should have knowledge about what is the investment vehicle that they are soliciting of support secondly institutional investors institutional investors have a duty to know on behalf of those those beneficiaries of their institutions here relevant to that as i understand it cyan terror is not relevant to his now you're to grant history on the separate coat of the failure to register which the  that that refute her testimony that she was engaged at the outset there was an organizational meeting in which she raised the issue of whether or not registration was required and that new attorney responded that he researched the issue there are only two attorneys that it could possibly be and the evidence is unclear as to which in turn how i know your case hints at a reliance on counsel defense yes are you actually saying because your brief doesn't say this that you know your client relied on counsel's advice that he didn't have to register it is if the brief is not failure to register in reliance upon the statements of counsel and that as raised with when he also followed up with the keep quiet who is a c p a with expertise in securities and regulatory matters in the evidence below there is an e mail of february of two thousand and eight in which mr wilson specifically brings that to the attention of miss guns all this is associated who has this expertise and asked her whether or not registration he's trying to co the information that was at the outset lincolns alice the record will reflect also states that she relied and she's a third party professional engaged and an investor in this particular investment vehicle she says she relied upon that worked he had been in the military and he had previously engaged in investments he had worked he had been all over to view gays in this for just a matter of a short period time a number of years i don't have the exact dates a short period of time  that is in the in the register where he was not registered during the time period of j p there was no registration that there was no question that there's no registry but that goes also to his good faith wyatt's which goes to the advice of and you see one of the problems we have no statement from counsel anywhere that he had five your client that there was no need to dollars reinforce those those inferences that are in the record below there is the initial statements that will be in the dolls and the testimony of adults then there is the follow up with the e mail and then the disputed declaration submitted by the right in which committee create even further material facts as to whether or not the advice was sought to see if you see submit in the record below a declaration of kate why it was a c p a with expertise in commodities and securities she has stated in a declaration which doesn't even have a correct name as misstatements all of her dates of employ and she states that he never advise she never asked her as to what was states in the subject matter investment registration conserves doesn't say as he sees as investment registration service and the defendants are inquiring about registration with the s e c or any other any other regulatory agency and specifically says that i what i don't want is bad news about registration conserves he's bringing it to the attention the emailed them and it has a high profile that is connected to investment clubs that is that describes some information and it says he is interested in trying to find out as we've discussed many times that he wants to play by the rules so to a person period september thirteenth to september twenty second and the one there is no transactions being made at that point in time number two they had no right to do transactions because it's an illiquid investment and they can not liquidate their investments until the end of the quarter which clearly you have a group of investors now the standard is a reasonable investor would consider this in his investment decision where you have a group of investors twenty plus in custer's not one single one of which after getting what is a substantial loss knowing that the markets are completely in turmoil makes no decision whatsoever to withdraw there is no action no one best one of the two but that doesn't so it's not material that's why they didn't act on material information well they certainly had the information and it is then with the september twenty second information it is disclosed that there was in the back or sometimes as to the test for materiality can depend on what people the actual people did it is whether reasonable people would find the information material agreed and so you think an investment club i would want to know that accurate account of what the fund has i would think it is clear that number one knowing what a fund as is some information that an investor would want to know they are trying to compare closing positions as compared to open positions as to whether or not those numbers are accurate the time period between september thirteenth that's a pretty second on the one e mail that has an accuracy when the market is is now is now considered to be number one it is not material because no one it's not a subject obviously there should be some information of subjectivity because these are individuals and so their subject experienced futures market trader who had the record shows a futures trading account for three years in which he sustained losses that were never disclosed whose investors he was registered with the commission as an associated person for a proximately two years  nevertheless he admitted in his depositions that he did not even consider registering with the commission and he simply chose not to register and in his initial deposition with the instances mr wilson admitted that he was making it was giving false number it was giving false statements so we think even the intentional part of it is set aside as to the recklessness mr wilson received this you identify eight misstatements that's correct and i'm not saying this is what i think but i'm just trying to understand how the law works here suppose we thought all were material but the the statements was also charged as a violation of seven u s c section six zero one b which does not require which has been held not to require scienter so this court with that have to consider whether or not those statements operated as a fraud upon  challenge that it is as to its amount so if i could actually turn to the restitution issue we thank him and otherwise how about his opinion here the district court struck a discordant note by a by suggesting that restitution is limited to the the district court sensually faults the commission for not providing that information and says i have a lot of discretion and this area mind you one point he makes it sound gross gross customer receipts or the more friendly net customer seats and we did provide that so so i i think that's about that to what that what the victims lost in the war was going on in those cases wasn't to harm a pretty good measure of the gain we think the harm here is also pretty my nature of the game because all of the all lost they all lost so how  he how was the last good measure of anybody's gain if they all lost the issues not so much his gain is the fact that the defendants were misled into it back into keeping their vessel with respect to restitution it's unjust to the rich so where's the unjust enrichment moment that he gained nothing discouragement take from that but you have to show some unjust enrichment not just harm he came the right to invest all two point zero eight million dollars what's the value of that that's what i think w lynch is asking you you didn't give to the district judge any account of how to figure out that or are you saying just the overall count that it's incumbent on the district court to figure out some measure without any help from you know our position is that  million dollars because because fraud was it was it issue though your honor what we would say is that he gained the right to invest this money and then admission would be what is the gain from the investment and that's what   so even if you're right isn't it also the case that this is an equitable exercise by the district court and it's choice as t in other words if we don't think that he was we also we also point out in our briefs restitution is separate from discourse and other restitution courts that applied restitution of almost all said that the full amount of customer loss is what's compensable you know the full context even in the phone contacts and they don't look necessarily to to go to the defendant's game would argue with this is a personal abuse of discretion if you know restitution we certainly think if there was if a court sided sort of facts the civic matters in this case are other considerations which which is which the district court did not that would certainly be well within the court's discretion here we think to us the record indicates that you really relied on this legal principle from verity to to to deny restitution to the defendants it if the court as of questions  with respect to the issue of the advice of counsel as to whether or not waiver or not i just would cite the panel two pages thirteen to fourteen and thirty one thirty three are briefs we did raise the issue there is clearly this is a honor where we had requested the court to be able to give us an opportunity to examine the different witnesses that were going to be relevant with respect to the issues of what would be appropriate given the fact that there was no victim that came forward given the fact that mr wilson from what my military this is all shown on paper what witnesses three you going to call as compared to the remedial aspect which is the restitution and given the fact that you have clearly no investor withdrew from the fund given the fact you have professionals and gage given the fact not telling what what does that have to do with the statutory why would you need to miss my point is that we resting on just a summary judgment argument which is submitted with affidavits in some transcripts the court entered into a statutory violation