they please the court counsel i'm bobby jones and trustee for premier spectrum group e m a private membership association we've agreed to split the time fifteen minutes with the janice attorney three for us and twelve for janice attorney well counsel you've been informed that an individual representing himself you may not appear on behalf of premier so in the arguments that you make on behalf of premier we would have to disregard so please focus your arguments on your own personal  case well i i believed in the spectrum opportunity and had purchased license applications from smar com a company in phoenix that was doing the same thing any enforcement of that so based on that i believe when you say they had given you a letter who are you talking about mark on i'm sorry ma'am and so i believe in the opportunity enough to set up the i for the purpose of including family members close friends ministers missionaries that my wife and i had paid for thirty of approximately forty three memberships this case was decided on summary judgment and our position is that with a substantial record that we submitted to the district court contesting each and every one of these statements of facts that was material and  some precision what the specific evidence was on each of the asserted validations that raised the material issue of fact all right let me start with the value of spectrum because that seems to be you can tell from the even the f c c is brief the value of these licenses the janice was applying for was a key issue permeates everything in other words if janice was selling license application services  says that there are those licenses that would be acquired by the client from the f c c you are not worth it well the specific issue was whether or not there was a misrepresentation regarding  but whether they have value or not is important and i get to let me get to the value of the evidence and then i'll get to the representations in in the order by the district court i f one of the key questions of fact is that all our witnesses agreed that the spectrum had no value or couldn't be used by a major wireless carrier so and that was what the representation was that these these licenses could be leased or purchased by a major wireless carrier so what evidence was there in the record that these licenses were viable for a lease by a major wireless carriers well we submitted decorations and reports of experts for example we submitted the testimony of mr tripp forest our engineer who specializes in this those names forest is f o r r e estie important the record can we look for that declaration in that declaration to find a statement that these licenses would be sought after by major oneness carriers he testifies in the record your fifty six and fifty seven saying that they are currently being used by major wireless carriers that they are what currently being used by major wireless carriers and can be used by major warless carriers so if the licenses were just being released how were they being used by the major carriers already because some of them were already in that spectrum and the idea and the concept was that they couldn't use that spectrum for their cellular services so his point was there are already using it for the cellular services so they're going to want it back but that was not the only testimony can i go through the rest of the list ok mr lewis who was a consultant in in the rebranding process before that he said the janice could turn around and sell to sprint was not a misrepresentation so that representation he says wasn't knowing about the rebranding infrequency said it was not a misrepresentation to page fifty six dollars of the record mr force that you that you referenced yes are you talking about the language at paragraph three that st sentence yes ok so it's it's it is currently being used for a low density figure operations but wasn't the representation that high density thalia operations such as sprint hor and the other major carriers would be interested in these licenses no i don't believe leisure arm because there's the one of the problems i found with this case even when i was trying to understand all this stuff is all the lingo that they use and  tillis really explain this a lot in his deposition which is in the record but i don't have the cites because there's low density high density there's broadband there's high site low site and as mr tools explains in his testimony for that certain uses by major wireless carriers could occurred and they would want them to occur and this is another important factor that needs to consider when considering whether these are misstatements or not is that there's all kinds of different uses by major wireless carriers when you get your cellphone out you have to talk you have video you have internet you have all these different uses and what mr to with explains in greater detail is that you can move some of the uses off of from bands and on to other bands because one of the things that the court needs to keep in mind is that these licenses are a finite resource there's only so much frequency out there and that's why i became kind of a gold rush when these licenses became available to the i wasn't the point that the desirable use for the licenses was for broadband wasn't that i don't leave so your honor that's not by the record that is use and that's where in this is important for the court to consider we've explained this where mr tillis says that no spectrum below eight hundred and sixty one megahertz can be used for broadband didn't apply to the licenses that janice's was applying for on behalf of their clients so it would be pertinent if the clients were led to believe if the investors were led to believe that money could be made through selling these licenses to carry is that use broadband i don't believe the representation was that limited i mean even if you look at the record it was just two major wireless carriers for their use not necessarily just for broadband i don't recall anything in the record that limited it there may be some discussions about that in an anecdotal type way but that wasn't the limit is that it can be just used for broadband remember there's also representations to the fundraising investors that are separate and apart from the  right at some point well course early on in the case they did have a provision that they would manage and monetize but they took that out of the contract but there also is in the in the contracts specific language that the responsibility for the licenses is with the client because remember the client is the one applying there's no pooling of money they pay janice to get them a license and the janta supplies on behalf i'm going to trying to get the facts in the record right and that was on the  made when mr al corn was doing due diligence before he bought an application from a rd party market that was told to him by somebody in the legal department that they were not available at that time and that's a mistrial corns declaration which i'm running out of time so i don't have the actual site to it but it is in volume two mr outwards that gratian saying he told me that they weren't interested at that time in the early start part of the process and then after that he did all this other due diligence retaining all these experts all these people to said yes they might be interested they could be interested they could use it and this is why because there was a lot of mistakes we are early on and i'm using all my time and every time for rebuttal but i'll just finish there was a lot of misunderstanding in this rebranding process and that's why tell us as testimony as important as it was involved in it that what could these licenses be used for what are the limitations on it and how can they be used in that was all developed in the early stages of me please the court martin to turn out for the securities and exchange commission this is an appeal arising out of a fraudulent scheme that collectively deprived hundreds of investors out of millions of dollars if it works for the court i think i'll start with janice spectrum and then if there's any questions at the end for mr jones i'd be happy to answer them i was going to start with the section five allegations that the district court decided on summary judgment but i think i will turn to the anti fraud correct some of the statements that were made previously the key question for the anti fraud provisions is worth of these licenses of value to the major wireless carriers it's not a metaphysical question about whether these licenses had some value to someone or whether the licenses might have value in the future and on the question of whether the licenses had value we know the answer is that they did not two major wireless carriers like sprint etc also what's their response to opposing counsel's direction of us to certain testimony in the record he continues at a minimum raise the material issue of fact regarding this point your honor i just urge the court to look at the particular record pages you gave i all i will also happily offer several others that directly contradict what he said  it doesn't matter if they contradicted that if there is a material issue of fact raise we have to look at the evidence in the light most favorable to the non moving party so it doesn't really get you very far to say there is other evidence in the record honor i might have spoken loosely what i meant to say for example mr forrest was brought up the engineer mr forrest in his testimony candidly said that he has no experience valuing spectrum and that major is not always true on the other side i could also point out that elkhorn himself acknowledged this is that supplemental excerpt page seven o nine that he wasn't an expert on  that just wasn't at the beginning at the outset nothing changed i think a stark example your honour's is that supplemental x or page seven hundred and twenty four this is well after mr elkhorn initially talked with sprint respectfully it's irrelevant whether elkhorn disagreed when he acknowledges he is not an expert on valuation and evaluation expert estimates had to come from somewhere else and people who were telling him about the estimate said they had no value whatsoever to the major wireless carriers and to wrap this up i'll put himself acknowledged and this is that supplemental excerpt page one thousand one hundred and eighteen this is in a march two thirteen conference call he says quote most people and this was engineers and even lawyers when the initial look at this is one hundred megahertz rebranding the thoughts are the minimal economic value because they were thinking they're not ready and here's what alfonso says they are exactly correct monk or another person referenced in the opening said quote these bans are almost a waste of time and that's at page sixty nine of the contest that the agreement between its fundraisers and the investors were securities it instead contends that it wasn't a necessary participant or substantial factor in those offerings and sales and the commission fully acknowledge is that this issue is often one of fact but there are several factors that one present allow this issue to be decided on summary judgment and those factors are at issue here the leading case on this subject is probably this court's decision in cmyk am from two thousand and thirteen in that case the court said you can't impose liability for those with a quote do in a mist or insubstantial role in a security scheme probably because section five of the strict liability offense but you can impose liability for significant and continuing involvement in the development and execution of a scheme to distribute securities that's basically what is the persons of involvement that you are a necessary factor and a substantial participation here as discussed those factors are amply met here so elkhorn spoke with fundraisers directly that's at page meetings were talked about misrepresentations before the jenna spectrum and elkhorn created pro forma as that had wildly inflated estimates of the value of these licenses those were than presented grant of summary judgment the leading case there in this context is probably this court's platform's wireless case and in that case the court said you cannot just say something isn't so to defeat summary judgment and to wrap this up for this part of the presentation lest there be any doubt about al corns role with the particular fundraisers and the investors an investor contacted a fundraiser and wondered if this entire thing was a sham so the investor  is said that there is a disputed issue of fact as to whether he had any role or edited the presentation but the only dispute is his own say so that he didn't read it but if the court looks at page seven hundred and thirty three  they made representations or participated or worse of financial participant yes your honor so there if you look at elkhorn and jenna spectrum's brief there is nothing addressing a specific time there is nothing addressing a specific meeting where al korn says that particular meeting it didn't happen the pages the f c c cited in its response brief those are wrong that's incorrect rather there is just a conclusion restatement that is al gore and say so that it didn't happen like that and under this court's precedents that is simply insufficient to defeat it it didn't happen like that though to give some facts as to why the didn't happen like that i don't think so your honor i think the brief says we didn't meet with investors full stop unfortunately that's contradicted at numerous instances in the actual record itself so a blanket denial that they met with investors does not raise an issue a tribal issue as to was met with investors as difficult for me to grasp it's not a one could imagine a blanket denials that says that wasn't me i did it wasn't there there i was somewhere else or something like that but here you have repeated interactions between a investors that are essentially un contradicted except for al corns own say so which is that i didn't do that this is a misrepresentation there is a categorical statement that i did not meet with investors but that is belied by all of the actual record evidence that he did in fact me he did on numerous occasions i referenced one of the fundraiser said quote most of the actual investors who came in to be defrauded in this fraudulent scheme were brought in because of meetings brief so do you think it's appropriate for us to remain and for the district court to him in the judgment of that and i think that would be possible i don't think it's necessary because mr butler and i were able to agree on what the proper amount of the interest should be and so there's no dispute on that point and problem is the judgment since otherwise doesn't it so i think i don't have a specific example but i'm aware of other cases where a court of appeals is able to say we affirm the judgment except that the prejudgment award is in this case knocked on by about two hundred thousand dollars so i think that's a procedural issue that this court has the ability to change i think a limited remained with instructions you know to reduce it according to how we agreed in footnote it would also be appropriate i'm just concerned that if someone looked at the judgment the judgment still reads that way i think the court would say the judgment is affirmed except to the extent that but if the court would be if the court is more comfortable with a limited remained for that purpose the securities exchange commission commission certainly wouldn't wouldn't object if i could address excerpts alcuin says we are not a license application company and so i think that is another example where if i urge the court to actually look at the record cites to see whether it matches up with the commission's theory of the case or ja specifically the meeting with any investors at any time that specific question i probably can't although i can tell you that we dealt with these various contacts with the fund raising entities and the investors which we say that was known in a reply brief i think starting at page eleven we deal with each one of these specific claims that the f c c made in their answering brief that they said that led to that they argued to the district or which led to the conclusion that janice and o'connor were substantial provided substantial assistance and our position overall is that they didn't they provided some anecdotal contact with people that was essentially giving them information about the status because remember the fine is applications everyone's interest paid in the f t c is going to do this within three years and then it's being dragged out so people the people that were running the fund raising entities wanted information on the you don't deny the genocide elkhorn did have contact with investors ruth with respect to the purchase and sale of these licenses not with investors but with the fund raising money right and i think that's a question of fact and nor the f c c argues their position the more i'm convinced that there's substantial questions of fact and that the f c c as well as the district court below is evaluating the credibility of the witnesses when i heard the f c c site counterpoints to my points and cites to the records as to the value of the uses by major wireless carriers as sort of like a cross examination what do you view with  because such statements are the type of unsupported conjecture or conclusory statements that cannot defeat summary judgment oh i understand you are in arizona we have a reference to what they call sham affidavit somebody's program was an affidavit that's inconsistent with testimony that they've given dealt with that issue may be allowed to answer to the core thank you are but we don't believe that's the case here we believe that we don't believe jury to allow the jury to see the entire picture of what context every statement was pulled from an e mail or made to a party or what happened here so that they could make a determination because in the context of summary judgment in  case this complicated with this many facts there's so much that you have to say and so little time to say it like me right now running out of the one hundred or so years that there are no frank reference the case just argued is that made it for