the next matter under calendar is brad packer versus raging capital management l o represent the appellant's here raging capital master front limited a company with a three person board raging capital advisors l l c a registered investment advisor and his manager william martin defendant is a beneficial owner as that term is defined in s c c regulations of ten percent or more of an issue or a shares those regulations make clear that beneficial ownership arises from the power to vote or invest securities as opposed to economic interest group legal title this appeal rests on the application of those regulations to a standard investment management agreement between a registered investment the master find it beneficial her even though in reality it had no legal power or ability to evoke or dispose of any of the shares investment portfolio and not just the specific security sure there were hundreds of them and it never had the under section sixteen a or make any payments under the statute i'd like to focus on the beneficial or should stand because the most complex of these three points the re seats on the board of the pond and the board alone has the power to amend modify or do whatever has to be done to manage the fun but the fun the way it's structured is all of the securities are with the investment done anything which is certainly not the structure that investors contemplated when they signed that they thought they were signing they were signing on to an agreement that was clear simple and could not be changed without involvement by the independent directors think you would have to go a little bit further improve this was structured to avoid section thirteen d a section slightly why why that why does intent matter i thought this was i thought the argument is that it's a strict liability  to go to bat if in fact it was determined after discuss appropriate discovery and trial that he is in control actual control of the entities at least sufficient so that he could on his say so and then the i am a would making a beneficial it might make the fund beneficial the on again this will be dependent upon the we completed discovery on to the end anyway the rest yes independent directors were deposed mr martin was deposed everybody had a chance to take whatever testimony and obtain whatever documents they wanted so this is the end of the case but when you say that in summary judgment was improperly answered is the sole issue then if we were to agree with you that there needs to be a rematch are you saying the remand would not be for a fact finding the  is and we would be to try on the court might we accept the evidence that there were issues but i i think the reversal on the rule fifty six dollars implicitly rejects the district court's legal standard here and it would be appropriate to clarify that legal this created this transaction he was on both sides of the transaction and the idea that somehow the control over the investment power was not in his control is exactly wrong  entity you've made that clearly sets your argument i'm asking how how can he act individually on behalf of the other three entities to the agreement with respect the other two of those are the three entities are relevant are now i'm asking you and you say well the other two signatory other two parties are irrelevant they don't go away because you say they go away they are signatory they are parties to one agreement how can how can string martin personally get those other entities to change it unless we have some exploration of whether in fact he is in control maybe he is in control i don't know but the but you say he can do it by a stroke of the path if he strikes his hand to morrow and says i hereby revoke the i am a i was that binding on the other corporations well he's a good sign  that means you mean that if if and if a signatory let's say the typical secretary of general motors signs something and says i'm authorized to sign between general motors and some pliers then then the secretary so so when you say well it really doesn't matter you've got to give me some authority for saying that not just say well they don't matter they are parties to an agreement and so i ask again how does mr martin get to and maybe he'd done but as i look at this record there has yet to be a finding by a fact finder that he does control them so here there's been a summary judgment that says there is no fact question the other side says there are fact questions and i'm suggesting to you that one of them is whether he in fact is in control he may be i don't know but but i think and i hope we can agree at least i can agree if they have there has been no explicit find it by destroyers that he is in control he has no power to do that that's a board decision there were two independent directors who registered with the cayman islands monetary fund their independent judiciaries and it's their job to in effect protect the investors that we're going to play something about his point that if he could commit the fund to the agreement on his signature he can also change it on his signature this is not true as a matter of law but that's why it's a bit yes david provide a resolution to show the independent directors authorized him to sign on the air because he did sign a b and everybody but yet express authorization from the words of those companies to do so and your analogy to the secretary general motors is legally correct