hundred eighty period the commission will either file an action or give notice it is not filing an action the consequence there is clear the only exception to that is in subsection two which requires a complexity determination for of why we're talking about one hundred ninety day rule at all because you don't dispute at least that an extension decision was made i know you have issues with their description of how it was made but you don't dispute that one was made do you well has to be a proper extension under the statute right romney's only if if we don't we have to decide that before we can even address the hundred the status of one hundred eighty day period well i think the commission's argument along has been it has discretion under section or if an extension is given it has to be according to subsection two in our view and that's because subsection whine happens in the commission's authority so i think that that it was sufficiently complex they do contend the complexity determination was made they just say that it wasn't there wasn't written reason given or they haven't proffered that in the record they they they haven't articulate d anywhere that the complexity of determination has been made their argument is that they had they said by the way that we don't see it quite as parsed out as you do i think they said we in granting the extension we grant extension according to the relevant standard which is that evidence in that judgment articulating that judgment isn't self jurisdictional for you to win because it could be that the time even assuming you're correct  requirement of articulation we're not saying that the commission has of the true order when it does this but the point being that for instance take r h stern in that case when there has been the agency stepping out of line as it has done right it filed assume that they do it's quite the opposite that they're saying yes of course we did this we read the law we understood we needed to terminations maybe in a meeting you know in a consultation about whether to seek the extra time we did make  complexity determination and so your i think your position has to be driven by you know an understanding that because of the demands of mr large additional renewability there has to be something memorialized on that but i don't take them to be of provision and the closest analogy here would be if if congress and said commission has to complete an investigation within one hundred eighty days that's closer to the cases that they rely upon complete investigation in one hundred eighty days but that's not what th is the title of it is one hundred as a deadline for completing investigation but this provision itself then specifies what happens at the end of that which is they had to file an action or give notice that they're not filing an action and that right there it spell doesn't grant it doesn't have the authority it's only derive power from what congress grants to us as well so i'm not sure why that's a distinction and this is about how you construe statutes that limit courts or agencies and i would be a little hard to say time limit further lucy but then one of the things i mean you made and it's and it's a good it's a good point that is that this isn't just a time limit it's an either or with an extension and the or is you know either there file or inform the director that you're not filing so let's say they inform the director they're not filing and the director says i disagree if you go and they certainly do this and they've done exactly what the statute has if they go to  subsection two no they don't have to that says either file or tell the director doesn't have the director has to do anything but the time limit is there some time is on them to either file or tell the director there's no time limit on the director when i say i mean correct me if i'm wrong  commission shall file it's like commission staff this is a little unusual commission staff not a commission shall file or commission staff shall provide notice to the director i mean it really seems like this is what the question is what what is this try accomplish and you know one thing it clearly was trying to accomplish is to make this seem more prompt and effective in getting its work done and you also point out in your brief a separate interest which is basically the repos interest of a target of investigation you and you know question whether that's really adequately supported in the congressional materials that you cite but it wouldn't be the case if that were in the interest that this determination or not w ould have to be something made public there's no requirement that this be communicated no but the question itself gives reposed to the target of the investigation if the hat and if that were the driving rationale which it seems to me is your main logic from reading this as jurisdictional that along with not acting would be some notice to the target of another important purpose of the provision was to put real deadlines on the agency which was basically dysfunctional prior to this point where the whole point behind dodd frank was to make a more effective agency in conducting business and a big problem prior to this was lingering investigations not raising investigations letting it go on forever and so it's clear you read against that background this provision is needed to either you make an action or by the passage of time it's close but i guess i didn't get that i  understand the argument it's a fair argument but it seems like the way it's written is to make commissions staff reading this up the chain internally staff take it to the director and do that with either file or take it to the director within one hundred eighty days so that gets it up to the director's attention and then if you want another hundred eighty days you have to go bother those commissioners and they have to move on the extension haven't you commissioners aren't real happy to have to deal with extension motions i've got more important things to do and so it's it's take it to director take it to the commission and so that seems like an internal push within the agency rather than an x terminal repose or a target investigation  big part of the purpose for this is to put pressure on the agency but a big part of that is to actually have consequence if they can just keep kicking it down the can down the road that's not solving anything that congress set out to do with this provision is just continue to kick down the road really even judges have you know timelines sixty day lists you know there are going to close the cases or you know sanction the judge for failing to meet them but it really is something that people pay attention to and there's no no evidence that it caused the pain the work had been done especially down even according to my two ninety nine where the commission says that the work the communications the clients all happened prior to about mid august so the work in transferring was largely undertaken it's only at the end of august where he basically says i've done enough work here that essentially i need some kind of effort to recompense because it's taken a lot more work than was required which might then we have to ask about but for approximate what i i believe in our brief we cite in the cases where it is a causal standard attributed to what is it because of what but the nature of the relationship is very separate question but there is no there's no connection between these at all the disclosure violation and the payments themselves there's no evidence that one recently was linked to the other what evidence is there as to the time that the money moved right that the failure to disclose a conflict of interest to his clients didn't have anything to do with the request for compensation for the work done prior to that well but i think the work came suggest that ok well we're going to have a relationship and i'm going to get something but no mindset right now and then the money starts flowing in and i ha have two hundred ten thousand dollars just i don't understand how that's not the two hundred ten thousand dollars came from the work that he'd done in transferring the client funds based on his recommendation prior to that point no there's no conflict of agreed that there was a conflict that arose that he had to disclose argument because isn't it typical when somebody is being essentially bribed to do work they get money and then they deliver are and there's a quid pro quo and you're saying well the fact that they got the money before they deliver it before they you know induce the clients to come over but those are assertions made by the f c c in writing a brief but there's no evidence of any kind of quid pro quo or anything to keep it secret but there's evidence that he's insisting that he's neutral that he takes no money from anyone c she was closing his account with phoenix he was starting a new business and phoenix wasn't doing fund of funds they needed to get the clients over to as j k ended and invest there in the fund of funds which is what he recommended because he wasn't doing that he offered to do the process the process took far longer and move it was more his eyes that he provides the person power does the work and says hey you know we've been that we've been in ministry of way out of pocket help us out here but both before and and whether whether he's annoying it before and then and then getting paid you know or not he's been paid and he's still denying it i mean he's part of the theory that yes he relies on is that the lunch is that the clients would not have retained him had he disclosed that part of it but all that is is testimony that it was important to them and that they right and so it seems like there was another decision that was caused by the flow of funds and that was you have earned two hundred ten thousand dollars but i know you have your flowing here's what i think your worth doesn't because there are ties to the wrongdoing not necessarily the specific right it's got to be tied to the wrongdoing the wrongdoing here is the failure to disclose and that according to the commissioner rose in why why we're all in the can and i guess that's why i'm not understanding why does your cause i think say i can only look at what he did for koskie before that august agreement because as i understand that's when the conflict arose in me you know directive the commission staff and regulates the internal investigation process doesn't limit the commission and doesn't pose any obligations on the commission which is the party that would be filing any lawsuit or institute instituting proceedings what case do you have where there was one time saw said do something by this time and this one is your friend it says do this by the time or do that by the time or get an extension there any other case that has those situation and the court found that that wasn't that wasn't a situation in which the power to hold the probationer was lost and i think the fact that there is this extension process undermines the point the undermines the argument that this is jurisdictional it's entirely within the commission's power to control the process and it goes purely to the internal recommendation process whether to file an action commission staff doesn't have the authority to go to court file an action without permission approval it has to go to whole process is informal and discretionary there's informal rules that have that have been instituted to govern this and it's all within the discretion of the commission to ensure that the commission's cases of prejudice things of that nature but there is a terminations letter there's no statute require but the internal consequences of justice as as your honor recognized i mean the commission say off has to go to their say their boss and ask for a first extension division director has to approve it and notify the chairman the second and any subsequent extension they have to go to the full commission and th things first it's a disincentive to commission staff to have a dialogue torrie investigation because you keep having to notify your superiors that you're taking a long time and secondly it notifies the division director and the commission insurers they're in the loop they're aware that this is continuing and they can do something about it and that's what this actually is directed at the legislative history makes clear that this was despite of the commission to action to ensure that wrongdoers don't fall through the cracks which is a promising promising investigation and that's why starting with the wells no this this completing these sophistications a more timely manner well i guess the two whether there's a difference between how they acted before and now but i can i can tell you that i've talked to inforce material in this case and others and they pay attention to this rule they notify they ask for extensions and they're aware of this this hundred eighty day rule and the requirement to to ask for more time so this is something that is governing the commission's conduct i think it is certainly is a reasonable way of ensuring that the investigations continue at a problem pace y unless extended and so since we're an extension lam i'm just trying to figure out how one hundred ninety day questions you know presented well one might think about that as part of contacts were to try and make sure we're not reaching out to the site something that's not actually presented by this case complexity determination that a court can really look and say this is a complex case it's whether the director determines it's to determine his subjective view that's sufficiently complex that it can't be completed within the time now that requires looking at how complex it is and that the bil bill these are the agency to commit resources and do it within the time even if it's somewhat simple if it's not even out of resources to do within the time is not sufficiently complex to require more time and so i think that is whether it's one of the situations where  payment that he had and i believe his name after discovery but you know i am not certain i think was after the second thing was discovered but certainly it was before it the entire evidence was put on before the l j l j decided this was particularly egregious and do it but didn't but that's certainly the another level several hundred thousands of dollars that simply he made out with that he got revised that wasn't independent when he said it was so i think there's ample evidence supporting the amount that was given which was  this contingent but one thing i think is that is the invoices themselves which said this was a marketing syndication fee i mean his explanation was this was just for the administrators working transferring things over but the bill was for marketing in syndication which is getting venture together you know joining up for this opportunity of this fund so i think that's the way to interpret it certainly isn't administrative work which is his explanation so i think the very fact that the invoices said this is for essentially marketing syndication getting clients over s he was praising him for getting clients to transition over there was a it was an e mail that where he got it where he might for said they were discussing the payment and number said by the way i got another client who's like great job i mean it's in the context  omitting information to all of them and again and again i firmly misrepresented misrepresenting his independence so i think all of that together makes very clear that the the payments war for they're getting the clients to move over and certainly that's what the commission  commission find kickbacks or that the payment turned on anything that happened after the august agreement as opposed to the stuff that was done before the august agreement is i'm sorry we have a commission five because there's this mid august agreement i'm going to get paid for the stuff i've done there will be done a fair amount of and ministry of staff of that kind you know controlling clients and going forward for where it is where just help me find the commission decision where specifically they no because the money whether the money essentially the process of moving clients over took several months and it is the record doesn't show when money was precisely transferred over of course even it was transferred it could have been withdrawn and it could have been changed so i don't think merely if some of the money happened to flow before he demanded to be paid i don't think that changes anything because if he disclosed it the his clients would have the opportunity to say wait a minute i want my money back i don't want this to go to straight and it was evident in the record that this the transfer process took several months connection is the profits that he received his ill gotten profits from the violations so i think it's not necessarily tied to when the money was transferred to montfort or not it's simply the conflict of interest arose as early as august thirtieth two thousand  honor's just to pick up on a couple points i'm told was the one case that they said was similar to this but that one who was bring someone for bring someone forthwith it didn't have the same kind of language that we're talking about here which is filed will file  going to the internal consequences that will occur they point to subsection two seventy eighty five that's the the layout of how they're going to get extension processes and i was going to move up the chain but their reading of subsection one is it's not mandatory another words it's discretionary whether they comply or don't comply with one hundred eighty three so they don't need to go to subsection two under their reading of the statute they can just basically blow the deadline and it's more of a nice encouragement for them to carry along in their normal course of business in responding to your question about whether or not he actually deciding subsection one point is they didn't get a proper extension under section two the consequence then is what does that mean and that means it was improper because they didn't there's no evidence in the record that they made the first half a british said we have pain the insect ascension because it was substantially complex he wouldn't extended properly under subsection to see my time is up so if you want to say anything about discouragement quickly that's a shame i'm still very confused about right timeline of the causation standard causation standard and we would articulate i don't think the course cases have been especially clear on what exactly because a she's standing right it's the way it was the ill gotten gains from the disclosure violation in this case i think had it been the advisory that were paid after the failure to disclose had gone forward that sounds like felt that is ill gotten gains from the failure to disclose the payments made based on work done to transfer to a fund  funds and they had substantially been undertaken what about appearing to make the transfer had already been done and it's only at the conclusion when it's clear that that is too much work that is then there is something there that you're fighting a little bit with the record the mom for was ever paid was for these administer services and so you have both that what the commission uses an admission you have the invoices saying that they're for marketing and while they're seeing new shows the right the rational telling that they were paid for moving anyone over is the invoice so i think that's the only thing that the commission wants to why isn't that enough you have underbody testimony from on for no one else explaining what's going on here who said they were for the services initial invoice that was given and i believe that's at j forty seven is for consulting fees for the initial one it's only called asking who then says for my tax purposes please make it for this he changes the