failed file bankruptcy shortly after this judgment occurred right when lp i have gone and are otherwise there's nothing in the record indicates that that would be the case in fact i believe in the record or quarterly reports from january two thousand and seven to november two thousand and eleven contained amid a material misrepresentation or omission pertaining to life expectancy estimates used by  interesting the like settlement business in two thousand or so by two thousand and seven or even two thousand and eight life settlements was a five year with a five year life expectancy would not even have had time to i didn't see briefs about the life settlements i mean in my mind this was like buying bonds that are close to maturity and the point was to estimate how close to maturity that it's a say what was the approximate life expectancy and what are the economics generally did did would you wouldn't the company had bought policies that were ten years away from the person being facilitated the purchase by investors to a third party escrow agency and that's important to the revenue recognition issue they did have their own own portfolio of these they get only interest o was not unusual for brokers to send in an old package with a new submission and so what's important here is the journal no no reasonable jury would have enough information to look at seventeen or eighteen so when you get so i can see why for a period of time a doctor who knew about treating aids patients or an oncologist i suppose could have had sufficient experience to say the likelihood this patient with this kind of manifestation is going to live x amount of time i find it a little harder to believe that a doctor but say i don't know whether he was an intern or still general practitioner could look at a medical file of an eighty some year old person within the past decade at least and say you know this person has a heart disease they have high cholesterol they're overweight therefore i think they're going to die unless some five going to try to challenge dr testes never know it so we don't know whether there so there's not a deal but this was the whole the whole thing was a flim flam based on you know snake oil estimate of life expectancy that's not the way the a c c presented this case they were presented it purely on the hindsights testicle analysis could have been better it very well could have been in fact the record shows in two thousand and eleven two things happen d because of market demands began to use twenty first services to provide a second life expectancy estimate and in when they sold licensed beyond that they would with the highest of the two the evidence shows that from violated these provisions even under the false certification claim it's not necessary that there be a heightened science to the s e c has not cited any authority for the proposition that when you have a jury trial it is sufficient so sometimes the seniors would approach them through brokers then ok now i will get there in house guy dr cassidy who is out you know nevada to look at the seniors medical records and he would make a prediction as to how long that senior would live now this wasn't simply a prediction you'll see in the record what dr cairnes he was doing is he was taken in the c b c general population mortality table using that as a baseline and then making adjustments to that based on his medical judgments about the life expectancy of this particular senior l ph i call that prediction their life expectancy calculation for their lp the evidence here in a trial the jury heard show that the shorter the predicted lifespan of the senior insured the more money right yes yes yeah and people wouldn't want to sell them policies if they couldn't get what they thought they were owed on i'm right because there were competitors in the market that's true but the record also shows that the brokers who were presenting these policies to shine were typically presenting one of these actuarial ellie's along with the package of information that would tell ph i and you can see it's actually referred to in our brief by mr lindsey on page thirteen of our review can see just an illustration of the fact that these these these actuarial these were significantly longer than life partners in small circle let me get to the bottom here because the fact is that you tried this to verdict a gigantic judgment was standard and they filed chapter eleven what they have gone under as a basis of these misrepresented alleged misrepresentations we believe the answer is yes your honor no no again the commission did not really have access to your health care you're just charging them a gigantic amount of money so that the people who did have these arrangements are now going to you know all the people who i assume are a lot of investors are just going to lose just about everything because either because of the overhead of chapter eleven or the fact that the  sodded able to pursue the investment any more well your honor i guess to answer that i confess that i not a bankruptcy attorney i do know that the bankruptcy is ongoing the trustee has filed a very thorough report with the bankruptcy court and in the order appointing the bankruptcy trustee the bankruptcy judge made a number of findings about l t h s financial condition so beyond that i can refer the court to the record but to the question of of our verdict led to the bankruptcy the sequence of events there was the judge but our verdict or the judge's order led to the company the judge entered his order and then l p h i filed a notice of appeal of course they did not post a bond and then they filed motions to be the lead to the bond requirement in order to prosecute their peel in that process submitted evidence most of this is sealed so it's not in the public record but it is available in the district court's records they submitted evidence about their financial condition attempting to establish their inability to post the bond that was actually the first solid evidence the commission had about their financial condition between basically the close of discovery and their attempt to avoid the bond now our belief is that that evidence shows why these aliens were important and how eventually the music was going to stop here on the man but ok so let me ask you a question though you conceded that the judge miscalculated the amount that  was we've conceded on the civil penalty your honor that there was an error in our papers on the total number of violations that we proposed to jen have significant would that be to the judgment why didn't you i mean we could we this court has into bankruptcy with it is not in this appeal that it's been severed out and remains pending now you know as to the judgments against part of the people which are in front of this court on the question of the civil penalty one of it and quite honestly your honor we we discovered this when we got mr kenzie's brief and we went back and we carefully looked at what happened below i asked you if it was something that's amenable to a clerical calculation i don't need to know the whole story so what's the answer to it yes your honor we believe that it's amenable to clear the calculation however i would i would caution that we are not necessarily in agreement with mr kansi yet on the total number of violations we conceded that the number we posed was wrong because we double forty six million well your honor the i believe six million is the penalty against mr pardo which is the largest penalty and that may be reduced i believe to somewhere in the neighborhood of i guess i hesitate to hopes a number that the court's to hold me to but without the double counting i think it reduces to the range of four million but again your honor i am hesitant to in that gentleman at a basis to negotiate for coming on appeal but that's just my humble opinion  with regards to the civil penalty perhaps we could have had some discussions we actually considered asking this court to remain and the case for corrective action on civil penalty but given that mr mckenzie was also challenging the section thirteen a verdict we really didn't see where that would be a productive use of this court's time in the districts time because the probability would just bounce back and forth between the courts what are we going to have the district court how to caraquet late and we're going to we think it's sufficient discretion in the first instance we think especially given the others issues in the case such as socks three or four that it would be appropriate for the district courts just recalculate the entire remedies package you know because basically in time now so it may a calculation error he's actually proposing a different standard which is the sensually that the jury must make all of the factual findings predicate to civil penalty right and with respect your honor but that's just not so tall the side of this issue and there has been no subsequent case on the supreme court indicating that tall is incorrect on this point so yes starts now than was very much within his discretion to make whatever findings were necessary to support the second tier civil and contrary to in it to a you've got to have these multiple violations at center and you can only get one where is that leave in light of what you've conceded otherwise and that well where does that leave the case i mean assuming you know we've got a joint issue relative to us in a tight spot because because we we wouldn't probably would be stuck with a single violation in this case but i would like to emphasize two points again your honor that would be inconsistent with total and two they never asked for a jury instruction here or find a violation on a on sort of a non intent basis correct that's correct and the judge is contradicting he's inconsistent with that in a record and then proceeds to a war of words of levees such the second tier penalties now i don't think there's anything improper about just now and relying on his understanding of the record in front of him based on his understanding of what the jury for all sorts of good task securities violations i think in height experiences with the first time i've seen a thirteen a case where the jury rejected ten b liabilities and that's the only basis for but i mean it's like an oil company saying well if you invest in our you know this company we do do oil drilling and some of the some of the wells are going to fail and some of them are not going to fail and that's going to have an effect on our deal and then you show well historically a lot of their wells of failed well you know if as long as they describe the history as i supposed to do it and then they say there's a risk i don't see what can be more risky than betting on how much longer an old person is going to live in the last decade now might have been different back in the fifty's and sixty's but in the last decade life expectancies have been taking that this is a risky investment obviously but but i think perhaps it it's not exactly a non disclosure case and what i mean by about is if you go and look at your ten days and actually quoting from eight at the very least they since their life expectancies were tailored to five years or less they couldn't have had they couldn't have had that knowledge within five years because obviously bunch of the people are going to die after five years and they all might have died of five years in two months what that argument your honor has two princes behind it one of it is that the buy articles don't not or and i disagree with that because you premise your whole case is built on a life settlement i'm not talking about my article why are our allegations in our case is that the their life expectancy calculations were just substantially short now when they knew they were short they should not have point in time right pretty much everybody as you all right did you through everybody in the industry well no your honor it was the actuarial companies that were creating the life expectancies were the ones at length and other life expectancies and i'm not aware of any c i guess i i don't see your most cases based on life settlements not by adequacy is that correct what it means in the sense yes your honor that by the end of two thousand and eight our position is they had sufficient data to know that their life settlement numbers were short and i see i'm out of time but you let me show you tonight it will not explain how you phone by articles back into life settlements when your whole if your hope a se built on in accuracies about life settlement how does the in accuracy about vi at a cost which is a different market so to speak feed into life settlements which is what you sued them in your case i'm not it's not my preference in your case unless settlements just like settlements are expert larry rubin testified that when i looked at just life settlements they were short and you can also see them would be beyond their capacity l t e by the end of two thousand and eight and this is their own internal data telling them this now and in mr mackenzie suggested that that that's not really sufficient data because you can't use larry ruben's analysis to determine that their life settlements were short but that just misunderstands i think what life expectancies are supposed to be a life expectancy within the actuarial world is not a prediction that someone will die in four years it's a statement of probabilities so if you have a group of one thousand people and they all have a four year life expectancy you wouldn't to support five hundred of them to have died by your four with a sample the mr the rest were buying out of the policies so i just looking at mr embry's e mail i think that they have data in front of them telling them that there's a problem with their life expectancy numbers all right with respect  submission from the beginning and he properly threw it out because there was no evidence of a problem with revenue recognition which was also specified in that question the idea that we can revive this jury finding that was that the song when the judge's final judgment order he sets out nine reports argue the penalty in prison seven five hundred and eight after so already we have to throw out the first eight that come before the period of time as you see now a theory of how this ought to shake out but it does you know trial judge said you got seven hours you know you think you know you ought to have two days but as mary's judges do they say there's no you got so you gotta just you know  have to adjust to the window and get it and right ok so i'm saying i get what you're saying turns the basic scenario but you know he tried it the way he did buddy body so you get to the point he's going to go to the jury though i hear what you just they charged it and weren't if they don't play it out that way king's x you know where is he same well when you get down to this thirty eight that's not so as i mean i've heard the argument i'm just trying to get to