to my argument today is going to largely follow the structure of a briefing which i think is the easiest way to to get to the issues in this case but i want to provide some additional color on on this case in a little bit more detail help us get to the right place first off the facts because i really think that this really is a fact given decision the facts here really are unlike any other case and here's what i mean we have a record testifying just fine under penalty of perjury that they believed that they had evidence that mr genteel was violating security laws in his behavior in broker dealer in two thousand and fourteen in two thousand and sixteen i received a call from the from the staff attorney dealing with the case and this is obviously all in the record saying we're just about done with this investigation but we'd like to talk to genteel and our response at that s clients from the bahamas and that would make them be wanting a unregistered broker dealer so to be clear that's the issue here yes that's exactly right that's exactly right and so it did the law as quickly as you can be in offshore want the cloud of a of a potential investor you sure a real investigation hanging over your head definitely but at the same time there are things happening under this firm worth investigati has not for us clients and this isn't a solicitation and so is that it seems like this is almost sort of a legal issue right i'm not debating that he has us clients but we're not debating with the what the web site let's bring your case and let's argue out whether in fact he is violating the securities laws by the way he's been operating the broker dealer but it seems it seems like a lot of what you're saying is designed to say that the c can do a better job investigating or reasonable job investigating they can do all of those sorts of things it's a complaint with their investigation and i totally understand why your client may have a complaint with their investigation but the question that brings you here is whether if you don't like how our federal agencies going about its investigation can you maintain a separate sued under the a p a or otherwise again said agency  a liberty because it identifies five specific actions that it defined in the def it says aggrieved by agency action later in section five hundred and fifty one agency action is defined to include only five specific items i don't know if i can get them from memory but it's adjudication license relief and sanction yeah and investigation isn't any one of those five so in order to get the waiver you have to have validly identified agency action the definition of agency action mentions only five specific types of agency action and so in order to fall into the waiver you would have to be challenging of my clients d customers clients process servers i would argue believe the reason the broker dealer eventually shuts down is because everyone stops doing business with them because they're constantly getting these subpoenas and the  provision but the two some parts are absolutely in there they say that it with waves except for you know where it where it's been the language is slightly different but it sort of where there's d been you know judicial review as i that the only way to challengers pool was a little forceful action i really think that's historically correct well regardless i mean don't you have to deal with the media eighty's decision of heck of a trainee which basically says decisions regarding whether to investigate or prosecute or matters committed to agency discretion by law and therefore outside the way i mean i mean that's the supreme court that's after specter that's after every member or not and this is an investigation of prosecution and therefore it's committed to agency  can read from it but she says the reason the relationship is not required the what happened was their investigation in the trader's cafe and everyone agrees that the fingers cafe is a group of guys i think they're in florida they are all open and it's open in two thousand and twelve for a couple of months and what the f c c what they have argued in front of the court in miami is that opened the door to our investigation into genteel so they sort of agreed is no reason sort of the reason the relationship and that's really the test but that it's in opening the door and what i said in my in our papers and i think it's i think it's accurate which is their argument is that if the f c c subpoenas about it we get that and if they were to go and get a formal order of investigation that was a in thinks if they come forward and say hey we have evidence of security and we want to investigate a short trader and then trade in the bahamas i would sit there and i've said that to the c repeatedly i would sit down if you guys go and get the formal order i don't have an argument i'm not down on discussion but that's what's so bizarre about all of the conduct here and into get back to our original point that's information we haven't how the investigation proceeds it takes differing amounts of time when this situation though we're face with not only mr genteel but his affiliates continuing refusing to rip respond to but your remedy is your remedy is to bring  because they have no in course i'm the bill of the on their own once you're in there i think the stakes co op that and so it's very strange freed a common say we need the information you haven't said this but it sounds like you say it's critical to our case all the evidence where it leads infected time and needs to complete the investigation because you told us a minute ago you need the evidence from genteel that's why you subpoenaed correct but you're not taking any steps to try to get that it's within your power to get that information you walk into a court and get it and you haven't even tried to do that because to do it over four years because prior to doing that we also can try to hint that information from other sources well it just teases out though i mean if you go to court and buying an enforcement action it raises the stakes yes if you go to court and bring a subpoena enforcement action it raises the stakes for that subpoena recipient because are real penalties for noncompliance with at least a subpoena compliance order that the f c c is but there's also a risk action is i guess you're saying i'm not raising the stakes for the rich subpoena recipients but you're also never allowing your agency action to gain any degree of judicial review and so it seems like when why hasn't it ever subject of those additional scrutiny if it's needed and if it's so legitimate that should be effortless because i think this case actually demonstrates what the u s is doing as opposed to going to rectory to genteel when he refused to comply with the ministry of subpoenas for example to comply with those subpoenas and part of that was due to reasonable efforts to accomodate scheduling issues and delays like that so after a year of trying to get those compliance from miss mary for example then we did go ahead and f if you think it looks like it one of these cases you proves that someone is stealing people's money and mr ford alluded to that is that right i'm not sure which one you're the one of the principles of the traders there was they were just sort of pretend t just seems like and you've got somebody here saying look if you're going to indict me in no indict in quotes just just do it just you know i want my big corporate mean you know you need either wrap it up or or indict the guy right once i think we did it i mean there was or can see with the principles of traders cafe and that those were done relatively quickly but in the investigation it was an investigation of the two principals of trade or half a s c c investigations are off about conduct and so we have to look at them we're looking at the broader conduct that was related to that and it takes time to develop sometimes the players whose information we learn in the course of those two kind of fast ones right and so relative i get i guess maybe maybe i'm just not giving you giving you guys the credit for how difficult this is investigated and even i do not necessarily i mean when i say you i mean the commissioner i could i would not be able to represent what the investigators know it just doesn't seem i don't know if the guy's going to have ledgers he i would think you get the names of the customers f happened in two thousand and thirteen but it's also the ongoing hot information and so what the traders cafe did for us as it created it we've developed information so far that leads to essentially creates a trail of money where that doesn't necessarily immediately give us names right so following that trail of money which is the information that mr mr ford alluded to is that sure trader had an account right with traders cafe and that money from shirt trader went to one of mr gentile's affiliates miss marin and her company men custody right and so we have to follow that trail of money and that's what we have been doing and that's why there are two enforcement asari subpoena enforcement actions in miami and while we certainly don't want investigations going on forever it takes a real it takes some time to develop the factual information when you're following the trail of money but what i think the primary issue though before this court is judge maurice his decision which is whether mr genteel entitled to go into an entirely separate court the new jersey court in order to enjoin the entirety of an ongoing investigation or he would go into m court if you if you try to enforce a subpoena against him there are a he saw and he has other options one of which he's clearly exercising which is to work with his affiliates in order to have them vindicate his rights right there's no mechanism directly subpoena against him giving him a way to challenge the investigation your answer is that sort of question that's our discretion and i think it's a reasonable investigative approach to get information from other parties around someone who you're interest and then you see ok now we want to get everything else from the rest the world and maybe later we'll go one force that really undermines the notion that this was a sound exercise of discretion as to when you would do it and when you wouldn't do it because you made a decision that you wanted that earlier you just didn't want it so bad it's a subject the entire right of your investigation to some degree of judicial scrutiny through an enforcement action and that's hard to understand but i hope it is a reasonable investigative technique when is that you use your word that mr message and it was a target but i don't know about i don't use that term in part because the investigations are necessary focused on misconduct by person a person b we're trying to figure out what happened when this money that went from traders cafe right through sure traitor to america trying to figure out what that money went when we're concerned about misconduct of traitors cafe folks we've already taken care of but are also concerned about why did you try to enforce against trade why did you that's a pretty low standard it's not mandatory intervention we probably wouldn't be here today because he would have a chance to challenge everything and come in and raise all these arguments and he wouldn't be talking about whether he had a waiver of sovereign immunity or not he would have had his day in court and so what in some ways is most i understand that that would have been one choice but part of the problem here was that we also have the principle of the fact that he was using a different court and you jersey court to try and join an entire investigation right so we're going to handle this one on its face as well that for a fact because we've seen this he's gotten to be to be clear while it's you know it's in the bahamas the bahamas has its own security bill seems commission just a very nice job of regulating its entities and he is consistently receiving requests from the bahamian security commission indicating that they are originating with the s s a and the whole reason i think they with the fifty percent of u s audience that's a no longer that comes from  people they can go directly if they want to to those people who are quiet and we know that they have been going to clients because clients get back to our guy and everyone says because it turns out he really has a good soliciting us clients he has a website that people find because you can get slightly better terms in the them if you're getting information from your clients if you're getting information from your affiliates ready whether it's mariner wintry or whatever you're not totally in the dark if they i guess what i'm trying to ask is and i don't i don't want to sound cavalier th has the broker dealer is now shuttered and the reason why the broker dealers shuttered is because and we put some of this in the complaint although it's going to your clients not shuttered right you know but but then the business that he built since two thousand and twelve which ones which was  case for the shuttering of the broker dealer and if i if i could i would i don't i don't know if i can figure out what i find so that's that's in the past you know it is so where do we go from there though i think the this investigation into genteel under suing federal agency you you you and your client have clear issues with the scope of the breath the power of the federal agency that's what that's reality right now but one of the things that that further cements the scope of practice the power of the federal agencies are the limited waivers of sovereign immunity that are the barrier to suing them and so you know i take it that you're only relying  and it sounds like in my head could be cheney this is just investor in prosecutorial and that is supreme court telling us that agency decisions in that ilk are committed to agency discretion by law on outside the waiver and regardless of whether that's fair or right or good that is a statutory contract that we've had with us since forty six and i actually agree with just about everything he said and i understand that the line that i'm walking here and that's why i'm sort of really doesn't talk about formal orders an investigation and before you know it if the waiver is changed to allow anyone to sue a federal agency who lacks a formal order of investigational once discovery into whether there's some form or investigation every s e c branch office o and gets a formal order of investigation they're off to the races and for the st few subpoenas by or even however long the target when they don't have a right for the reason articulated which is like look we want to build up our case against a target i don't think that's an unreasonable i think that's a real position here though and this is another factual error remember they in this is why i pointed out in the beginning yes you see step turning two thousand and six told it's immoral now it's in the record and six allow someone to sue an agency for abuse of discretion but in its waiver it says you cannot sue for items that are committed to agency discretion and so i guess what you're saying is i'm suing for something that given the guidance of the assisi already handed in something that's not truly committed to its discretion already exercised its own guidance now what i'm doing is i'm bringing abuse of discretion claim