not i would like you to go to the language of the statute in what circumstances do you have an express cause of action under forty seventy two fo like most indentures has a provision in it that says that if you end up selling some of these notes to somebody who's not qualified to buy them gets cross wise with forty seven which as with all the other securities prohibits any kind of provisions that work a waiver of the act  that shouldn't have bought the nodes since the denture it sounds provides a remedy have to be equitable for you to walk in and get the whole thing recent because once you have a violation of the registration provisions under seventy four of the act the investment company cannot do any business that involves interstate commerce given the breadth of interstate commerce anything including the recession but that is going to be doing business in violation of when the park easter after the indenture they said oh my god that's such an any contention that it would be equitable to lend you several reasons first off although the trustee wells fargo did attempt to undo one of the sales there are six sales three of the sales went to parties that are interveners before those in the core below and are before this court right now so they didn't use the language they didn't accomplish anything with the language they didn't use it and the language is in essence  waiver of the forty seven b to remedy doesn't this allow any party using your interpretation or you or your what you the way you would like this are essentially to bring a case any time for research i believe it does given the use of the word equity in forty seven p one well in forty seven b two and it certainly allows us to raise that at any time one pursuant to the us supreme court dressed presidents and other inferior courts kaiser steel there need not be a private remedy in order to raise the defense  contending that the that the original sale of the jr notes was to disqualify persons or that that original purchasers subsequently resold notes to disqualified persons both both things happened there were notes purchased at issue in two thousand and five and there were no it's purchased later in the secondary market in two thousand and seven why don't you have a statue here there is a remedy and is both the bella cough court recognized and just justice scalia in his discussion and alexander vs side of all recognized the exist the absence of a remedy is dispositive when you're trying  section eight of the investment company act you see that registration provision is imposed for the protection for the public interest and for the protection of investors so there is a right there this is a fundamental key to the securities law as it exists under the under the the thirty three act for the registration for a public sale of securities it exists under the thirty four act for the registration of brokers out of the public utilities holding company act for public utility holding companies and for advisors under the advisors act and here the company act and i'm out of time let me ask you something for the for you s six of the complaint feels to state a claim and they say the indenture express the brim it's the sealed newt's an unqualified purchaser requires investments to represent they are qualified for the new power empowers co issues to force i'm not sure that we did address it i don't remember and i blocked it to take up the court's time looking at our at our reply brief we spent most of our efforts in the reply brief on the defens brief you know at this time i can't tell you whether we do it or not you can take a look while you're you know arguing seeking rescission under section forty seven b two that you have a contract that saw them i did in violation of the act or whose performance would involve a violation of the act that's in section forty seven they want and we'd submit that there is there's no such where i usually am i get a read back of the last statement i use your opponent's position is that the contract was formed in violation of the act because illegal sales were made notwithstanding the in the contract that we won't allow any illegals i think that's a good i think that's a correct reading your honor and our position is that when you have a contract that explicitly precludes the sale of notes to known qualified the performance of the contract in that instance is violence of the act but at a minimum we said that your opponent is right in the performance of the contract with the act i take it it would be a else certainly the for your adversary to the junior note holders show evidence on the summary judgment motion that the original sale of jr notes to  from what's called the yes the intermediary which was best earns and suntrust in this instance which was an underwriter technically i think in the pollens of the c d o judge the volatile referred to as an initial purchase up which is distinct from the underwriter but for the sale purposes i think it's fair to say that they played a role that was consistent with what you would think of as an underwriter role and so just returning quickly to the equities point because congress would write in and express private right of action section thirty six b says an action may be brought under this subsection by the commission or by a holder of such registered investment company on behalf of such company so that's the type of language that's consistent with that certainly is one way to do it ok but are you telling me that forty seven b does not confer a right of action for receipt one any party who can allege that there is a contract under section forty seven the one that has been performed yes judge man respectfully that is what i'm submitting i'm submitting  forty seven b should be read as a clarification that that remedy may not be denied to a party who otherwise has a right of action for example under section thirty six baby not that it confers an independent express private right of action b i'll just address it well let me ask you there are any other issues that you'd like me to address at this time your own is otherwise i'm happy to see the internet and you know we have you thank you very much could could you just for a moment focus on this last point mr corker suggested to us that first you have to add a recognized right of action and then the statute that you argue where you use the word with the statute you excuse me use the word any person any party you mean it makes clear that in the circumstance where the party does have a right of action and the party has  act whether it was under section twenty six with respect to hybrid products like variable annuities or the more standard mutual fund twelve b one problems under section thirty six and thirty six b those are contracts that are not key to the structure of the mutual fund they don't go to the existence and the validity of the existence of the mutual fund there on the side and the remedies that are provided under thirty six to the f c c for enforcement and the derivative remedy under thirty six b are very narrowly focused on these  indenture which is the organic document that governs the rights of the constituents of the investment company just as articles of incorporation do here this was void from the get go because of the failure to register and indeed our summary judgment opposition proofs that were attached to our response to lance up statement of material material uncontested facts did have affidavits from the purchasers that did document when they purchased and that they were not qualified purchasers and we did plead in our complaint the violation of the registration provision and requested the remedy under forty seven i don't think that we had any need to address the no cause of action argument raised in the in the in the opposition brief but in fact we did opposition groups also stated that none of the non kewpie's in fact very few of the the purchasers of any received the offering statement the indenture or even the qualifying  affidavits or placement contracts that you typically side where you acknowledge you know i'm a qualified purchaser or in the case of reg d i'm accredited investor on the case for one forty four i  am a qualified institutional buyer they never got that stuff thank you thank you very much thank you both will reserve decision in this case