he's the c e o and you would think logically that if you think something's missing that ought to be there he simply orders somebody to revise it and quit sit there so i don't see what was preventing him from disclosing anything that he stock price of the company seems like there are a couple of other things too and i just don't understand how he how there's a problem that was not fully within his control and how he can at the same time honestly certified these things and at the same time not required that they be complete well the record shows that the the first time any sort of issue really comes to his attention that later  he complains about as a towards the end of may twenty twelve there's nothing in the record prior to that date that that we're discussing it on this case and you can kind of see what all kind of refer to as a snowball effect over time so the first issue that comes up is a potential path an issue relating to their intellect control system that's again at the end of may twenty two out of and you can see that is sort of building steam through towards the end of june into july and again it kind of reaches a crescendo when he makes his full compliance on august twenty nin because he was still not in a position to really declare these things to be violations of law and that is a fact that was ignored by the district court and that was mr very first explanation essentially for what you know what was going on i mean this is a very tight time period that we're talking about and we have you know one piece of evidence that comes into play towards the end of may and nothing else is really going on at that time point is demonstrate in the record so to get as you just take off like bullet points what you that is you seem to say there came became a tipping point and i guess i want to know if we can pinpoint the tipping point sure and i would i would probably put that towards the end of july in early august  that's when you can see on the record more things are happening again there's the the conflict of interest with respect to mark williams and there's the c p a issue regarding board members will there's the i believe it was  there is no such requirement but that's an individual who is of advising mr verver and we need to look at what is the knowledge of the individual who has a subjective belief if he's relying on his general counsel and maybe he's not as great as maybe he should be i don't know various problems to some kind of market effect i mean there's no duty under those securities laws of any type sarbanes oxley or elsewhere to disclose every little blip that happens in a company some things happen that aren't so great other things happen that are very positive but there's materiality threshold and he's converting all of these things into i suppose allegedly material omission a couple points that your honor first again poured that he sees himself in a role as a whistleblower to the board and telling the lord that various things didn't happen that should have happened and you know your opponents say that's not what whistleblowers are  fact the district court was dubious at that was the right characterization because he's basically just telling the board that certain things didn't happen and the board knew that doing this thing and you shouldn't be doing it that's not whistleblowing that's calling somebody out on what that the propriety of what they're doing with someone suggests you didn't know you were doing it before the board people knew exactly what they were doing you're  think in this situation where maybe makes a little bit different is that we have a situation where a board of directors received what it understood to be complaints of conduct the implicated sarbanes oxley and took an adverse action response now each and every thing that he complains about maybe it's not going to rise it's a level that's really a question for objective reasonable you know but there are matters that the record shows that mr vera firth did raise to arise board of directors that were objectively reasonable and in that instance it's protected please the court steven yoder for the securities and exchange commission as amicus in support of mr first so mr yoder i have to ask you you know events have kind of taken you by because the supreme court in digital realty is going to address the dodd frank issue right there's no distinction between the dodd frank issue here and there that's correct the dot is a legal issue as to the interpretation of dodd frank is the same in this case as well  that's correct and the briefing in the supreme court case is currently ongoing the commission wanted to participate in this were a large amount to give the court the benefit of its views in because this is an issue that had been addressed by the dish of court earlier in the litigation point yes would there be any reason at all to reach the dodd frank issue there might potentially be your honour's if you've if you look at section twenty one f h of the exchange act that's the retaliation pro however the profit or language of subsection h specifically protects any lawful act in making a report that's protected under sarbanes oxley so potentially subsection age does reach more broadly than strictly speaking the commission takes no position is whether or not that any lawful act language should apply or be met on the facts of this case but in response to your honor's question that's that's the most fulsome answer that i can give you can give you it sounds pretty remote actually just reading through everything you just said i understood your honor actually understood and if i may be of your would you just represent the chief judge is that the position the commission is taking in the supreme court and the commission has not yet taken a position in the supreme court we did take a position in the ninth circuit litigation below we filed a brief and participated in that argument at the supreme court we obviously are required to defer to the office of the solicitor general and currently the briefing is ongoing if an amicus brief were to be filed in support of the whistleblower at the supreme court that currently would be due october seventeenth and that decision wall to leave you made a will have a clear position on the commission on october seventh certainly of the federal government i think the commission's position circuit on yes it is your honor if you compare the two the two briefs are substantially similar we updated some of the case law and researched this court's precedents to replace the ninth circuit precedents we had cited in that court your honor so the brief is substantially similar and our position in both courts is the same propositions that the commission reasonably interpreted interpreted the whistleblower definition in twenty one f a six as most nationally applying to the wards provisions in subsection be rather than the retaliation supreme court will do what the supreme court does on dodd frank but there are some members of the supreme court who are very much at least public advocates of the plain language approach toward statutory interpretation and it seems that the commission may have an fourteen count complaint the many complaint all of the claims were dismissed or just have to clean sheets for this court the retaliation claims under sacks of retaliation claim under dodd frank the conduct that's alleges identical there is not a distinction and one or the other for purposes of the claims that he's alleged i do want to just address a couple things up front that opposing counsel said that all of these issues for example first came up in may of on for six years that was obviously something that could have been disclosed any time in that six year period that was not an issue that came up in may of two thousand and twelve mr bear firth is raise concerns with a employment agreement mr scruby employment agreement existed well before me of two thousand and twelve so i am not sure that's an accurate statement that these are always issues that when we look at the what's protected conduct is that are made to between may twelfth and september what other things that worries me about your position is when the board finally gets around to sending him the four cause terminations letter on november ninth it opens by saying that it will the real focus is on the attorneys fees payments which i gather is some sixty thousand and then grossed up to be about ninety thousand but reading light favorably reading record favorably to mr fair furt it looks as though he offers on a number of occasions to pay back whatever you wanted ninety thousand dollars or you know some amount of money and so how can that how can we back you know can we take this issue off the table but he doesn't do that judge he gets a letter from the chairman of the board mr khaki on october twenty second saying your directed to pay that money back he doesn't do that he gets the same  agenda for that september eighth november eighth meeting on november sixth that everybody else on board got that said we're looking at a trauma nation for a cause for his failure to pay that back one would think that if he truly was going to pay that money back company in other terms if he has committed it in a letter to pay it back as part of his side of the deal why isn't that good enough while he hasn't committed to do that because what we know is you're correct there was negotiations going on but those negotiations run successful on september nineteenth and october nineteenth mr bear first said i want to resign and which he can do and here in the terms the terms require him to sign a release that release the board members the attorneys he refused to do that just to get the one point four million severance package correct is a quid pro quo is the release right so if it's in the context of where where things are at in november is here's a person that is refusing to sign an agreement the release that's required by his separation agreement his employment agreement and is he going to pay the money back because there's no agreement  are we going to be able to take it from here is he says his p t o is paid time off he doesn't have ninety thousand dollars unpaid time off why couldn't you just give him a severance package of one point three you know whatever adjustment you told to to recoup the whatever you think it is this rounded up call eight hundred thousand dollars for he would have been paid the severance but for the fact that he refused to sign what's required in his and complainer agreement the release of claims releasing the directors and releasing the attorneys you know it was it would have been done had that occurred but he refused to release those claims and that was a condition precedent to getting his his refusing to pay acts of dishonesty misappropriation conversion those are pretty harsh accusations seems to me and in fact it doesn't really reflect that there's a dispute for all i know it's a legitimate suitor i don't have any idea but there's a dispute with the attorney associated with the divorce and you're just assuming this is not resolvable me hasn't been dishonest about it's very open he said there's a dispute and i'm willing to pay this back if you're insisting on then right in that and i'm not going to say dispute that in fact there was a dispute with his lawyer the result was that the court ordered all the fees to be paid to the lawyer when did that happen  hearing was in january of two thousand and thirteen so it hadn't happened yet on the date that your letter was sent correct ok that's correct but again the context of a judge is what we have is a person who is not agreeing to sign the release as required by the agreement so to say that this person we should now trust that he's going to pay back the ninety thousand dollars the company doesn't have a reason to do that and that the chairman of the board has specifically said pay the money back and when you resolve your dispute then the money will be paid to you to pay your lawyer a very simple where does he say that which letter the october twenty second letter  filings he thought that that he they were close enough to being material omissions that he's under the protection of the whistleblowers that i think the district court under and under these circumstances got it exactly right and the reason is because what sarbanes oxley requires is basically fraud conduct righted it lays out there's mail fraud is wire fraud there's bank fraud and square there's none of that that occurred  it talks about material misrepresentations there's no allegation of that there's no disclosure that was made that had anything that was incorrect the bottom material or otherwise so what about the patent the pending  that he believes that there's been a representation that the that orion had told proprietary interest in the into light product and there's some suggestion that that may not be the case there was at least a partial investigation by his did to save dollars and it turned out that that system the the savings from the system versus what the cost of the system was was so minimal that they ended up having significant the they yes the c there was a dispute about who should be representing orion and whether it should be fully and lardner or somebody else and ultimately solution was made that it was going to be somebody else so it was it wasn't get protection and i think that's exactly right under these facts and reason kind of prove one is it's a disclosure case that's primarily what the allegation is should have disclosed additional information that wasn't disclosed this is the c e o of the company this is the person that has the obligation to disclose has the obligation to certify on every single one of the ten she was in a ten kick in a case that there have been no material misrepresentations or that there have been any material omissions that would make the disclosure misleading well that's why i asked the first question i did mr welch s k because it seems that at least some of the ten case in ten  at one ten k and some of the ten q s were filed at a time that he was alerted to these problems and i don't know what would have prevented him from disclosing actual correct and that i don't know communication if there is truly a concern that something needed to be disclosed that wasn't disclosed to the other issue i think that judge agrees back here on was most of the who their first would call protected conduct is basic run of the mill management issues it's not fraud issues and as the c e o you deal with those issues so fully fully and lardner billing if you truly think that there is a concern with foley and lardner lardner billing you do what clients across the entire country do is say ok here are the new rules of the game you need to do no block billing you need to get approval for anything it's going to be more than three hours and all the things that that we as lawyers as he claims to want a routine basis that's a management when you're forty three minutes before the meeting we're going to have a discussion about terminating you and you now send out an e mail saying ok i've got all these schools all these concerns i think there's a significant reason to question the good faith of that document well you would agree if something really was related to a fraud it wouldn't matter that it was forty three minutes before the meeting would it it probably would not but again if if the things that are supposedly fraudulent for example the foley billing and forty three minutes before the meeting you raises for the first time and say that in fact that that qualified  other questions i see none so thank you very much and i believe you deserve sometimes too well t on on something that in order to have engaged protect that area sarbanes oxley there's no requirement that mr bear first prove that fraud was actually committed there's no requirement that a federal law was actually violated what is required is this circuit recognized  august thirtieth when he lays out again the full disclosure of all the complaints d has refused certify anything else and further he states intention to meet with the f c c about the same issues at that point there's nothing in the record demonstrate he had anything other than a good faith belief that what he  time all right thank you very much thanks to all