som is in birmingham and said andersen is in macon and we have four appeals that are scheduled for argument this morning i'd like to thank counsel in advance for making yourselves available for these arguments by telephone conferencing and we have counsel i would advise you that we've read the briefs and we have big sam and relevant parts of the record that will assist you in confining your arguments to the precise issues in the case that is the time keeper and she will let you know when your time has expired and she will also provide you a two minute warning  rhonda and anderson is here for the appellate and stooks is here for the happily and ms anderson are you ready to proceed with your argument yes i am your honor you mar court this court remanded the case back to the district court to consider on remand whether disgorgement is appropriate in the present case there were no findings by the court that there was anything  arguments i fail to see how that remedy that request for that remedy was waived do you have a case that would support your position that it was waived in light of those circumstances is there a case where they post trial briefs or sensually are arguing for what the court should award should  is is waived at that point if you haven't even raised the issue i would argue to the court yes when you have a a jury verdict that goes to a proposed form that goes to a jury and it doesn't requ at that point the c f t c chose not to pursue this course in an argument in their post trial briefs requesting the relief in the same manner that you know you do when you put in a jury verdict form i do see the wrinkle that you're talking about but i don't see the distinction here as to why the c f t c now can really argue their case when they  nd issue before the court this morning is whether or not the c of t c showed in the record show that the ill gotten gains if any that were receive remaining what we have is we have an e mail that is from an attorney from two thousand and fourteen that is purportedly exhibit number one on nine we don't know how many reflect the brokers if you look at the appendix that we received from the f t c we have a four page exhibit and details on that that these were the only i think this was a primarily an argument to bring forth the fact that mr escobedo didn't receive a penny any commissions on this in this matter so it was not settled in there as to the amount which brings us to a discussion of the supreme court's discussed case and lou  sanderson was there any suggestion of a more appropriate approximation of the appropriate amount of commissions being that we don't have  s we're talking rough biggers here of two million dollars and the additional penalty that's placed upon him financially is number one unnecessary because he's already has a lifetime see the issue in this appeal is a discrete one and it is whether the district court a erred in ordering disgorgement for count four of the complaint after this court remanded for consideration of that very question and so the question before this court is did the district court err in ordering defendant robert scoble you know to disgorge the amount of commissions his company charged customers for illegally brokering futures trades without being authorized to broker those trades because he was never oh i was there this sort of halting hiccupping preservation of the issue in the district court you might have done enough but you know it's there in the complaint there in the closing argument but it's not there and you know the post pro motion that's not there in the proposed findings and conclusions examine it seems to kind of come and go why is that i do understand the question and  brief what we sought as the remedy for this case was restitution because it was a greater amount and greater compensation for the victims about double the amount that the victims could receive and then  when that was remanded that the district court i mean that the panel of this court directed the district court to consider whether a different a different remedy would be appropriate and i do not believe that waiver was ever in play because the just games for the unlawful futures trades was always the basis of the civil monetary penalty under our statute the district court can has broad discretion to award disgorgement restitution civil monetary penalties and injunctive relief and and the civil monetary penalties are based upon the the defendant unjust gains and so that evidence was always in the record because the court could overboard up to a triple triple the amount of the un just gains for the for the civil monetary penalty you know was it was it perfectly post brief and the district court accepted the figure of three hundred and sixty thousand its findings and conclusions post trial so this evidence was in the record it was well preserved and the district court committed no in ordering disgorgement when directed to consider the issue by this court this is judge anderson talking to realize that the civil penalty and that there's no there's nothing in the statute that four b is the district court from imposing disgorgement restitution and civil monetary penalty so they would different amounts well they're you know they're based on you know the disgorgement is based on the i'm just saying the restitution is based on the customer losses and the civil monetary penalty is again based on the just game which can be a trip triple the amount of that game  between restitution and disgorge look my recollection in this case is that the restitution was the amount of trading losses that victims suffered on these illegally placed futures trades and when it when it came before this court the court found a proximate cause issue there and that the that the unjust gains were measured by the conditions charged for the illegal  overlap i think they are different measures based upon different facts and once they went to the panel of this court i guess what i'm asking is are we talking about the same money or no well i do i understand but i do you do want to be candid with the court i don't believe that this results in a conclusion that waiver is a proper finding here because and we appreciate that ok ok statute allows the district court to award remedies in its discretion and the evidence was always in the record even if we didn't have a paragraph in the post trial brief the judge could have ordered disgorgement right at the need to look back at the order there may be a reference that all of this gets paid into a victim fund certainly restitution could go straight back to the victims that the disclosure i'm a i'm still confused about there's three hundred and sixty thousand dollars seven u s c thirteen c parentheses be any person who directly or indirectly controls an entity that violates the commodity exchange act is indeed principally liable for that violation and for the remedy and the district court rightly found in this case that mr gove you know founded southern trust metals he was the c e o he controlled the bank accounts he was the boss and the notion that he didn't individually benefit from the trading  it this court shouldn't doesn't need to decide whether the discouragement order was a penalty for them and purposes because even if you look at it under the excessive fines analysis it wasn't excessive that the considered grossly disproportional and finally this concept that he shouldn't be held accountable for discordant merely because he has been ordered to pay other remedies or penalties for other conduct makes no sense you can't it's not excessive to hold a defendant responsible for for bad acts just because he has also been held accountable for other bad acts and finally on this question of whether f c c versus new the new case that was decided during the pendency of the appeal should be applied we submit that this is not a proper case for determination of how f c c versus new would apply under the commodity exchange act because the defendant never specified any costs or expenses that with legitimately be deducted and it was his burden to do so not only that but they liue case is concerned only with deduction of legitimate expenses and notes at page nineteen of this with opinion that deductions for expenses are inappropriate when the entire profit of a business result from the wrongdoing this brokering a futures trades was wholly illegal because mr scalia was not allowed to do to broker a futures trades without being registered with the c f t c and so every bit that he earned what derived from the on lawful conduct and therefore no expenses should be deducted and then write down a five anyway i'm happy to answer any discretion to pay out that money as an additional civil monetary penalty despite the fact that the court previously found a trial court previously found that that would be excessive given the entry of the permanent injunction against the defendant and the requirement to make who restitution this was a registration violation there's no showing that the trades themselves were illegal so i would submit that the substance communicate the point the judge anderson was asking you about other than that in the heading did you ever say that that would be awarded erroneous because it fails to deduct expenses i mean clearly you made that argument in the district court clearly post lou you tried to make it in a twenty eight j but it seems to me that your vantage point is that the argument even before lou was available to you because you made it in a district court but you didn't make it in the blue brief that concept in your heading it page seventeen of the at the bottom twenty seven at the top let's go by the bottom page is there the pages of your break you have a