court my name is calling killing our i'm here to provide oral arguments in support of myself and daniel williams who's beside me here this case really boils down to four key things first we cracked the case against torture bank without our contributions there's no fifty five million dollars penalty against there are no whistle blower awards period to we are eligible whistleblowers as the original source of critical information as defined by the whistleblower rules as they are explicitly and unambiguous written yes you see has a runny asli interpreted these unambiguous rules contrary to their clear meaning to denies an award their use of just discretion here is incorrect and not supported by president three we did not forfeit our rights to be whistleblowers as they gave us was was not based on the rules were in place but rather on their subjective interpretation of the rules specifically they chose to interpret the rules in a manner that is counter to the specific language in rule twenty one f or subsection five they refer to as the original source exception which clearly states quote the commission will consider you to be an original source of the same information we obtained from another source if the information satisfies the definition of the original information and the other source obtained the information from you or your representative despite is very clear rule yes he does not consider us to be the original source of the information provided they claim that the sixty key center versus g s a president supports their use of discretion in doing this and they quote this the president says it's well settled that an agency's interpretation of its own regulations is of controlling weight unless it is plainly erroneous or inconsistent with the regulation but the precedent they rely on or honors has an important qualifier that the agency's interpretation not be quote plainly erroneous or inconsistent with the regulation yes he sees interpretation here is plainly erroneous and inconsistent rule twenty one f or subsection five uses the word will with regard to the original source of consideration there's no ambiguity in the language used and the use of the definitive word will rather than make could or might remove any latitude for interpretation yes he sees interpretations clearly inconsistent with the regulation and therefore mr williams and i must be considered to be the original source of being an original source in your argument is that they're reading language into the regulation that's not there that is correct they they do mention some of things they contemplated and there are other instances in the rules where they do contemplate specific circumstances and they leave those circumstances out in this case for rule twenty one f or subsection five they actually use general language which certainly includes a certain circumstances here so a fact that they did not necessarily contemplate i contracts or agreements in place where we ceded our rights to the contrary we do have agreements in place with claimant number two where we have specifically preserved our rights instead if you see relies on the hamilton versus atlas turner precedent to determine that we to go down this road which are probably the incurious of one is as we go through this process the level of effort we expanded greatly exceeded what was originally expected the quality and the quantity of evidence we provided greatly s that you did not supply this information essentially we're not supplying you with government you were supplying your claim and number two who supplied it to the government was paid in initially that was true that being said twenty one before subsection five clearly states that the commission is compelled to consider us to be the source of the original information if the iraqis in that way the language is explicit and clear and it is it is which is general enough to include our search circumstance so when they talk about the ability for the commission to interpret its own case on the part of retained experts to abandon their contracts and file whistleblower claims and that would complicate the work of the i c c and and educating these claims it would seem to me  i can't comment on what future cases might be i can say definitively that is not the case here we did not abandon any claim we did not do an end run on anybody everything we did was properly documented and it was communicated to the i c c on a timely basis well before there was any penalty and i was i was just looking at the regulation and whether the interpretation you're offering  possibly discourage whistleblowers from engaging people like you professional consultants who assisted them in putting their claims and for fear that the claims might result in the second whistleblower claim hi good morning your honour's david covello i'm here on behalf of john doe the appellant i want i think to give a sense of the dynamics of the case as it applies to mr doe an example is useful and this example is one that we only million dollars who ward he provided the documents the as he sees investigators who are looking into this issue the leverage super senior transactions and he described the document as follows the document i just found is from a market risk meeting that took place in may fifth on may fifteenth two thousand and nine and it acknowledges the short option position that's talking about l s s and the fact that it is not modeled or a price exclamation point and not saying that was bad conduct and it goes on that's in there in the record for zero three eight and the claimant claimed to provide of the document about the meeting at four zero four two there were only a few attendees at that may fifteenth two thousand and nine meeting and john doe was one of documents about this conduct it was almost a year earlier in fact that he first went to the f c c and eight months before claim it to had gone to the f c c now doe has been given as as the court knows no credit for the information provided the s e c intake group the c f i you did not forward the information to the investigators until well after claimant too had come forward and they leave even then when they started forming information they only they left out some of the best information though is what would be considered an exemplary whistleblower in this context he was an eye witness and he had documents he complained internally and don't you bank at the time in two thousand  he went to the senate's permanent subcommittee on investigations and talked to them about the problem he was believed there he went to the federal reserve bank of new york talked to them about the problem he was believe there they referred him to the f c c he went to the financial times talked to reporters about the problem he was considered a reliable source there and then he went to the d o j and to the bundesbank to talk about deutsche bank he was considered a credible witness they are all of this is in the record and then when he  information that he provided in september and october two thousand and ten that had been timely passed along that it didn't prove to be significant because by the time the right people got it the investigation to proceed and timely passed along it would been significant the theory is that the f c c engaged in affirmative misconduct in connection with both not providing not forcing that on when they knew there was investigation and then blaming him for not for him for some shortcoming of his when they didn't forward forced some shortcoming of of the information but what is also telling is that the original information provided under our theory was useful to the to the f c c the information is fungible if you look at the statute it talks about information doesn't talk about who submitted it and there's a real policy reason to keep that information with the original not secondary there's a good overlap here between what claimant five john doe provide and what claim to have provided he's his october submissions were highly detailed and and it and the affirmative misconduct continues beyond just not forwarding on the information when when when sought to bring did even though he provided actual documents substantiating it and but at the same time give credit to claimant to for almost identical kinds of submissions it was a real bias that they they showed and it seemed like an shut down as our web page sort of identifies the court directed us to appear today so that covers the anti deficiency act turning to the argument first i'd like to start with the first principle anyone who comes forward to the commission is appreciated with any information they have that's very important to us that's what's critical to us to protecting investors protecting the capital markets that said when congress in two thousand and ten created section twenty one of our whistleblower program congress specified certain stat procedures and they are taking and they directed that the commission should specify and articulate more procedures and more standards and so there's a disk and while we on the one hand appreciate anyone who the record that they provided they help to revive under the guise of claimant to very important information i think that's that we don't dispute that that and we're very appreciative of that at the commission the question is did they follow the procedures if you look at section twenty one f c two of the statute it says no awards shall be paid unless the procedures providing information are proper follow that's the statute and we follow that up at the commission by creating of a process a sort of an orderly process there's a there's a pipeline essentially the very first thing you have to do is you have to become a whistleblower you do that by one of two articulated methods filing information on our online portal or alternatively filing what we call a foreign t c r in doing that the very next thing you have to do to actually be eligible for an award once you become a whistleblower is you have to sign under penalty of perjury mr williams did not do that in fact when their report was submitted in june two thousand and thirteen if you look at both their report and the cover letter that was attached to it it says it's being provided in support of claimant to submission fourteen months then transpire the sort of noteworthy event and there is may two thousand and fourteen when claimant to use wife receives a divorce at which point half of the award is assigned to consented to that we are advised the information that's provided in that august two thousand and fourteen documentation that would be the first time to become whistleblowers it's the exact same information we've already been provide fourteen months earlier and over the ensuing months the the so that's the point when they become whistleblowers they do provide some additional information there's no dispute that that information actually didn't lead to the success of the action the commission in looking at this i know that there are three different articulated reasons why this fails but i think i think the two most obvious and easy are our rules our rule for lead to says it's not just you gave information and that information led to a cause of action it's that your submission once you became a whistleblower led to the success of it they don't dispute that there are submission had already been been substantially used that that was their original information that they contribute under claimant to use submission had already been substantially used and that they're just sent sort of was no additional benefit from their submission the records clear on that point it's also clear that because the commission has by congress the statutory authority and has followed this through notice and comment rule making to create procedures and standards that we can't have as the commission can't have a situation that people retroactively at the last minute get to step forward and say we're changing we ourselves over here are going to change the dynamic and he's going to be the whistleblower not be any longer or we're going to parse it out differently there's all kinds of statutory rights that come with an obligations on the part of the commission that come with knowing who is a whistleblower early on such as confidentiality protections and things that put the commission that expose the commission to identifying people as whistleblowers so it's entirely appropriate for the commission to look at a very well established principle such as forfeiture which relinquish failure to assert our right in a timely fashion with fourteen months here that did not occur in addition waiver mr curers and williams said and i believe this is incorrect they said  that they never let go of their rights that they were this was always there information according to their reply brief in their reply brief the expressly state that they entered into a new arrangement just before august two they were part of his source they were part of him they were part and parcel they came to the commission as his agent and talked to the staff on multiple times and they in conjunction with them submitted additional materials they were there is no and in the investigation or the litigation the case that stated three times in the friedman declarations and well i understand and we are sympathetic with with mr doe situation that he believes he provided very important information the facts morrow where this where those submission was originally assigned they listened to mr so in mr doe's brief i believe on page twelve he talks about the fact that it was a three hour presentation only thirty minutes of which even dealt with the issue that was the issue in this case there were a number of allegations against which a bank there had been twelve different submissions by mr doe over the many years about deutsche bank and i understand that that the sensitivities that mr doe feels about the description of the meeting as the staff saw it but that description is not wholly unlike by any measure the description that occurred three that  sread men on a totally separate team when she met with him in may two thousand and four thirteen at counsel's request provides and that and that was at a time when unlike the two thousand and ten meeting he wasn't counsel even when he was counseled three years later the meeting was disjointed they had difficulties understanding what his concerns were every single time anyone looked at the information that mr joe provided they didn't feel that it was worthy of a phone point so so not only do we think there was no impropriety and we are comfortable that it but it be the supreme court and also personnel management versus richmond has very clearly specified that collateral estoppel where monies against the government in this type of situation are involved are is not a permissible course of action and contrary to to those assertion these are monies that come out of the treasury if you look at section twenty one f and g of the exchange act it says in the treasury shall be created first of all second the monies that go into this fund their monies that are otherwise designated for the general treasury and when they get into treasury they are a monetary certain types of monetary sanctions up a certain threshold get read to get put into a sub account in treasury so there is there is no dispute here that that office of personnel management is squarely on point plus there further questions were prepared visa thank you very much discourage whistleblowers from coming forward and then went on to say we have standards and procedures and are going to great length that those must be followed but the key thing that he's not following is the concept of original information which is that rule twenty one a four sub section b five much of counsel's argument is in fact not codify it anywhere in the rules but in fact is made up as something is there conjecture or interpretation not what's written down on paper and the procedures so he says there's no there's no award unless you fall in the procedures and he talked about the penalty of perjury declaration when we submit our forms u c r we absolutely did sign that signed the declaration under penalty of perjury previously when we had worked with claim a number two and previously when he had seen our report we hadn't signed that declaration because at that point weren't coming force as whistleblowers yet regardless the f c c seemed reason be confident in information was  require require our rights as whistleblowers we never give up a right as whistleblowers but obviously you need to make sure you are confirming your intellectual property rights which we have done we've done it with contracts which are standard bog standard contracts so yes we require the ip we never forgave or gave up a right to the whistleblower so and then when he gets into this semantic argument about our submission not contributing to the case well the only way you can arrive at the conclusion that our submission didn't contribute to the case is if you accept their interpretation that we are not the original source of the information provided if you accept the conclusion that we are the original source of the information we provide which i think is crystal clear then you can only conclude that our submission not only contribute to the case cracked the case thank you  your honour's council for the a c c mentioned office of personnel management regardless of whether the investor protection fund is within the treasury the c c does not argue it doesn't have discretion to give doe an award under twenty one f b one they do have discretion to give them award it's authorized by statute they have never made this argument that it's not authorized by statute that they're prohibited in fact i think they would argue that they have the discretion so i don't think office of personnel management applies the ad hominem attacks on the john doe continue the f c c seems to be the only agency that didn't find him credible as to the other team who interviewed him in two thousand and thirteen when i began to represent him i can say first of all that misreading his declaration never says he wasn't credible he is credible and he had documents to show it and he was an eyewitness if they had read his resume they would have known that he was credible and more more to the routed to the right people here until after the clinton amy friedman's declaration is clear she didn't care at that point she already had claimant to the original information was mr mr dos thank you thank you all nicely