the st issue is that the district court erred in awarding disgorgement after the supreme court's decision in cash because the supreme court's decision stripped the district court of authority to order discour the right to appeal the consent judgment and agreed to discouragement remedy in effect my client to waive the right to appeal the form a final judgment that was attached to the consent decree that was the final judgment entered in december two thousand and fifteen which in which she agreed to waive the ability to contest liability and then also where she agreed to be enjoined from certain actions she did not waive the right to appeal the court's award of monetary remedies and that i think he doesn't contest that and also it's important to note that the consent decree does not change the fact that due to cook hash the district court lacks the authority to award discourse the law is clear that a consent decree cannot confer on a district court authority to do something that it doesn't otherwise have if you book under system as system federation number ninety one versus right there the supreme court held that a consent decree must be modified because of a subsequent change in law it also recognize that the court's authority to adopt a consent decree comes from a statute which the decree is intended to enforce the parties have no power to require of the court continuing enforcement of rights that the statute no longer gets would you address the part of  are properly applied discordant principles in this context yes your honor but no three is intended to say that the full question before the supreme court in ca cash was what is the statute of limitations for discourse and purposes the court wasn't faced with the question of whether or purposes recognizing that its primary purpose is to deter future violations of the securities acts the supreme court also recognize that in many cases as you see discouragement is not compensatory based on these three characteristics of as you see discouragement in civil penalty therefore it cannot be awarded pursuant to a court's acquittal powers but the supreme court has not said that the supreme court has not said that correct and haven't we been admonished we all here on the courts of appeal nationwide been admonished by sobran court don't look to look to predict what we're going to do we don't need to look to predict what the supreme court is going to do we certainly problematic for applying that principle when it starts out nothing in this opinion should be interpreted as opinion on whether courts possess authority to order disgorgement over you have to then take the reasoning and apply that in this context we have to look at whether or not  you see discoursing can be can be equitable where if it is punitive in a circumstance and it is that are they do we know whether the discordian here is being used in a compensatory fashion and would that matter record there seem to be some aggrieved investors identified there are however the cook i should did recognize that even if there are multiple purposes to a to a penalty even if there is a comp compensatory purpose a civil things then the cannot be fairly said to be solely serving a remedial purpose is still a punishment so even if they do in this circumstance fine aggrieved investors and return that money that does not  turning to my next argument even as the seeds gorge mint is an authorized remedy the district court erred in awarding disgorgement the total amount of alleged investor losses here in order to obtain disgorgement the f e c had to demonstrate a reasonable approximation of only did not transfer all of the proceeds to the internet investments and that at least some of the proceeds went to her own purposes this is not sufficient to establish their burden of providing a reasonable approximation of her gams what about this court's decision several years principally by selling illegally selling to investors more than four million dollars of her own unregistered securities that a court determined best for that misconduct mr ms on should be directed to pay discouragement pre judgment interest and a civil penalty but that decision is consistent with this court's precedents and was well within the discretion of the court to fashion an appropriate remedy for mr amazones violations of federal law i'm happy to also waived her right to appeal from that judgment there is no reason that it shouldn't be enforced now i understand that my colleague cites to cases involving intervening changes of law with respect to consent decrees but i think there are two important points to remember the st is that this is not necessarily a consent decree in the typical sense we're not talking about a court exercising continuing supervisory jurisdiction let's say to  she she has preserve her right to challenge the amounts of discourse meant but she is absolutely foreclosed from appealing to distort imposition of discordant as a remedy in this case now i believe the next question is whether the district authority to impose it in commission enforcement actions but it's not just this court remedy is so well settled that congress has not only endorsed it as this court recognized in pa maisano but has ratified it by continuing to build and stand on at all this court would need to find that footnote three in fact means the exact opposite of what it says that's that would be a remarkable conclusion given the clarity of the court's language the unanimity of the eleven other courts appeals who have addressed this question as well as congress repeatedly speaking to the availability of discordant which is perhaps why seven courts and at least one prior panel of this court has already rejected the argument that m she does not contest that she directed buyers to tip was it her proceeds into the accounts in question it therefore doesn't matter whether she ultimately controlled these accounts or whether she used the proceeds for her personal benefit she controlled the distribution of her illegally obtained funds and is therefore liable for the funds that she dissipated as well as those she retained and that makes sense because at bottom disgorging has an obligation to return a sum equal to the amount of property wrongfully obtained it is not an obligation to rip levy a specific asset and that makes sense because if the law were otherwise been wrong doers could avoid discourse altogether simply by transferring money to a rd party that cannot be right that is not in keeping with this court's precedents or even a conventional understanding of discordant she with respect to the amount of pre judgment interest i believe that her argument overlooks two fundamental two fundamental principles both  asset freeze and prejudgment interest the purpose of an asset freeze isn't to preserve an assets value it's to preserve the acid itself so that it can be used to satisfy to satisfy a judgment in the nd is that prejudgment interest doesn't attach to individual assets it attaches to the discourse when amounts as a whole not consistent with these principles this court explained in rez milledge that when an asset subject to a freezer supplied to discordant p j i may not be awarded on the value of that asset for the period during which it was frozen that is what the district court did here what mr m is always seeking is something quite different she would like this court to hold that even when an asset is not available to satisfy a judgment the total amount of pre judgement interest you should be reduced by the speculative prejudgment value of an asset that is not actually available to satisfy general because or excuse me just because it was subject to a freeze order that the commission is aware of no case that supports that position and in fact as miller that you least implicitly refutes it because they are the court held that if the frozen sons had remained frozen for the benefit of the parallel criminal proceeding and were not applied to mr these proceeds were with those from which he served as an officer or director or was a significant if not the majority shareholder i understand that she makes other arguments contesting the mr court's consideration of mitigating factors but the record and the district court's judgment are clear that the court considered those factors and determined that her agree just in recurrent misconduct outweight them that is not an abuse of discretion is consistent with this court's precedents and the general nut case the nd circuit provided that when a change of controlling law intervenes to proceed ings in the same court the judgment should be modified to conform to current law insofar as requires a future course of conduct we would have to agree with you that the case you is interviewing will you would and i'd like to address that quickly as you see has not identified any way in which the analysis of whether or not discouragement is a penalty changes when you change it from the statute of limitations whether you're considering it the in the statute of limitations contacts or in the present context nothing about shifting this frame of analysis changes the basic fact that as we see disgorgement is intended to remedy a harm to the public rather than to compensate specific victims circuit in with the supreme court that he declined to respond but then the supreme court has now ordered it to respond by september th so we may be getting some guidance from the supreme court in the near future  turning to the calculation of discouragement in this case the f c c now argued that all of the proceeds from mr mesons because it was her shares they didn't argue that before the district court that's important and they also answer co operation with that p c and with her destitute financial condition thank you thank you very much thank you both will reserve decision in this case