through the u s attorney's office entered into settlement with mr cunningham and other defendants including c t o company owned by mr cunningham in the main subject of the f c c action the w agencies was utilized throughout the government the agreement paragraph thirteen reference the u s and its agencies paragraph twenty five brief reference to the c g i restoration fund to executed by the northern district of ohio the and the same care and paragraph five of that court order also referenced a government claim against c g i as when they by an agency paragraph twenty five contain provisions for the payment of government claims against the c g i frustration fund notwithstanding in two thousand the f c c filed its present action asking for an injunction penalties and discourage from the court thereafter obtain supplemental declarations from the draftsman of the agreement mr siegel u s attorney and the f c c each attorney at the time of ms murphy also stated somewhere where mr siegel stated in his declaration that he was told that ms murphy said the agreement was secret and that's a reference and in terms of the appeal here there are i believe three separate interrelated groups of issues the government has claimed that the nine hundred ninety eight ohio settlement only restricted subsequent forfeiture actions and then said that since this discouragement is not in compas within the concept of forfeiture the agreement this matter applying it also has standing as a sub part it seems to me that you radically restitution and discords amend together could result in more than one hundred percent of the losses having to be in because disgorgement can't go for things other i believe in our brief your honor we reference that that amount would come to something in the neighborhood of four million one or two hundred thousand dollars under the king i believe a calculation made in  opening brief the sum total of discouragement under that kind of a offset with him out to about one hundred seventy two thousand dollars as we calculated these final your honor were set forth with some specificity in the nineteen ninety eight agreement which was x which was pretty which was executed tween the part i don't know that answers the court's question or if i missing something here well i think i understand your position i'm just trying to figure out the how whether that's something that we calculate or the district court would calculate assuming that for the sake of the question assuming that we were to hold that the discouragement action was not barred by the previous settlement agreement to leave your honor under those circumstances it would be in that it appropriate for a rematch and to the district court might be a simple hearing there but which says i believe i think there are two paragraphs in the agreement the first one says any claims brought under brought under eighteen u thirteen forty five which by reference reference ninety one and ninety two the second part and i believe this paragraph forty one of the agreement referenced i believe referenced any claim seeking discouragement that would suggest to me if we're following the careful wording of the agreement that with the government is really saying in the agreement is we relea restitution from discouragements and that would not so the f c c cannot say in a series of cases as we cited that restitution cited in our brief yes and i think i have four minutes morning my name is lesley smith and i represent the securities and exchange commission the commission as you know in this action obtained discouragement judgment of four point three million dollars against defendant cunningham which was his individual share defendants signed with the u s attorney in the northern district of ohio first because the settlement agreement covers government tied for future claims that do not include the commission's remedy  overlaps with what the court below is just ordered to scorch there's an qualifiable overlap there i think there might be a tiny overlap because there were restitution actions to c g i customers but nothing else what happened was that the department of justice seized twelve point seven million dollars from bank accounts six point something worth cunningham's five point something remorse and the rest from the other defendants and then the out of six hundred thousand dollars payment to cunningham first personal use and in the end there was two point one million dollars left over and they all decided well let's put it in a fund for c g i customers c t i was not a in the case it was finally brought in as a party three days before the agreement was signed just to receive unsigned notices and things like that so if there is any overlap it would be in the twelve claims that have been  filed against e t i from by disappointed investors that the commission has made very clear its brief and its general practice would be credited to cunningham because it was paid tell from the record it was one person who talked a little bit to siegel and they obviously misunderstood each other and as to what was going on although she was mulling her she was fairly cracked about what was going on there were arrests there was  criminal action as you see would have nothing to do with that and he began talking about a settlement and she apparently thought it was just a settlement for over two g b which was true until the last three days or so the of the agreement and it was put in rather late feels under a lot of pressure to use the funds as well as he could for you know restitution or purposes and that was result of the government can see that in its brief that there should be some offset certainly so when you think it would be appropriate for the district court judge to determine what that would be rather than for us doing that on a well actually normally it's done by the commission as it as it moves forward and and you know but since the judge deny the offset if you i don't know jurisdiction i don't know whether you need to go back to   appropriate or can the judge determined that there is some different amount that perhaps should be out that while it's possible isn't i mean i think i don't think there is trying it is possible that he was intended and resulted from negotiations which expressly used that term as a legal term action by the government civilly or criminally to assert legal title to funds on the basis that they had become forfeit to the government under the e in that contract defendant argues however that interpret in the settlement agreement contract terms are to be interpreted in their ordinary or popular sense by which means the dictionary that in addition to the ordinary meaning that is often used the need is the technical terms and words of art are given their technical meaning when used in a transaction within their technical fields and that rule is followed in robin versus s order to interpret the term contract that was used by contracting parties who were lawyers at the technical meaning of forfeiture is the correct meaning of that word in the settlement agreement forfeiture is a remedy that has been associated with punishment whereas discordian is an equitable remedy designed to recover a defendant's ill gotten sense does that make either side if the parties meant strictly the statutory forfeiture claims were being released why does it matter how we characterize them as long as their intention was limited to those statutory claims and this is a different statutory claim i mean both parties have argued that at great length but it seems to me that if they had in mind statutory claims one and two but not three four and five why do we have to analyze what they underlying philosophy is  intended to be settled and when the parties used the term forfeiture they mant certain statutory claims and you say we're something else we're going a different claim that isn't called that in the and i don't i guess i don't understand why we would have to go beyond that to characterize the different kinds of clients well obviously if you just read it on the face of the statu discordant wasn't it you wouldn't have to go beyond it and i think that's a supplementary argument that for many years of history when courts were confronted with this very question they said no you don't put discoursing in a class with forfeiture because you can only take the ill gotten gains i mean all the cases remind us that discouragement is not to be used as a punishment nor is it punitively and you know you get stopped in the court of appeals if you make a mistake and how much money i think they did the best they could they grabbed at the money because this company ltd operated in the regular laded options market so nobody was paying any attention to it and the department of justice decided we're going to get these people who are committing crimes and went off and got what they got but i don't think they could have exactly pictured well let's take this money car that as many dollars because they don't know what the claims were i'm looking to see that here earlier questions were something that i needed to snuff telling him argued in the district court that he was entitled to a set of half of the two point two million in the c g i restoration account and the district judge did not grant that request he'll he wants everything that was seized from him by the justice department that was retained by the government which he calculates to be about four point three million this isn't a new argument and it was not presented to the  because it was distributed to investors you know teaching it under an agreement that he agreed to and he knew that when you don't get that the funds which usually if they are used properly by the justice department for a different and i think he has a burden of proof to show that he does get a set often with regard to those phones he definitely has not carried since those were distributed to others the government does not have them they are not retained and  he agreed to their disposition doesn't have to be confined to the very things that you defrauded people out of but rather you have to pay whatever the amount is from whatever funds you have and that's the commission the proper procedure i think for a set off is certainly not to give a set off now or early enough in the process but when there are is enough data from the investors to be able to determine that their claims and losses accurately and it's possible that that's the sort of thing that you do want to send back to the district court  and if it were to be a limitation there wouldn't be any purpose for saying the u s government and other agencies do argument that the f c c was unfamiliar with the agreement does not slide because her final item on the docket this morning was franklin versus the state of california youth authority and counselor coming