o impossible because you're sitting in front of a bright window and therefore your computer has turned down that helpful it's somewhat helpful the problem is the window yeah i thought that since it was morning time oh ok that's a much better thank you ok i'm not sure what i'm exposing in terms of living explicitly that unjust enrichment that discouragement may only apply to unjust enrichment that is a result of a securit is only available to the f c c if it still comes from judy kidd securities law violation our position was that there was no causal connection there were violations but you make of the district court's statement or finding mr cool things wrong doing and i think i'm quoting completely permeated not makes investment advisory operations of the entire relevant time frame an free view that you're arguing for here it's de nov why isn't the standard review clear or why isn't the standard of view clear air i think the standard reviews clear air force for the legal question but it's  arguing certainly the new statute i think is pretty clear about that but that the court makes that and that is a finding of fact whether a caused b that's not a conclusion of the law or you're trying to say it is well i'm trying to yeah well i believe it's probably of mixed finding in fact the inclusion a lot but let's look at what it is without putting a label on it we showed and the  golding's compensation was six hundred and forty two thousand dollars so the question is is that six hundred and forty two thousand dollars earned as a result of a securities law violation or not allegations pretrial that these were fraudulent offerings and judge gilbert himself has already has now twice found that the subscription fees that golding was entitle to were not dependent on anything other than the completion of the offering so the money was earned in the offering process offering crossed the offering process has not been determined to be fraudulent then you have cursed offering activities and p appealing those and we're not disputing them here but those failures those security law violations that do not relate to the offerings that relate to the spreadsheets but but actually what the district court found something written wrong with excel depends what you put in it but the court found that there was lots of inaccurate information in it incomplete information and in the sense  that these books and records were a mess so the court was trying to make the best estimates it could out of this global situation all these different funds and what was going to not make and what was mr golding skimming author himself and  does he get to take the the free and clear how do you see that i think that's i think that's right i think that if one if there is two million dollars in profits generated one billion that one million dollars would be discouraged here and the other one million dollars he'd defend it would not be liable to discourse here the situation is there is no showing that because of these record keeping violations of because of the failure to segregate the use of the relief defendants that mr golding benefited in any way or improperly benefited from th those violations it's simply he simply did not the money he was entitled to receive better the s e c his own documents is it eight hundred and sixty nine thousand dollars attributable soley to the  for performance based compensation and the f c c says that was twenty six thousand dollars off still that number that twenty and that twenty six thousand dollars in additional compensation to the six hundred and forty two thousand dollars you're still within the eight hundred and sixty nine thousand dollars entitlement so here is no showing that mr occurred subsequent to the offerings and that the and the f c c has not even attempted to connect any post offering violations to any kind of golding to receive compensation that was an excess of what he was entitled to under the written terms of the agreements and i don't see the connection and i i tried to case and to this day i don't see any connections now there wasn't one point at the trial where the f c c was trying to show that this general ledger indicated to mr gold had taken in excess of four you google gold it was at that point time over by and you know so that's not something that is sufficient to show there's any misallocation just gilbert as i can tell you never made any specific findings about an amount that mr golding took in violation of his contractual obligations very simply if we're talking about post offering fraud the question is did the insurers compensation exceed or was it within the contractual titles and here compensation what he might be says liable to disgorge effect six hundred and forty two thousand the entire amount was within his non contingent obligations simply not contingent entitlements simply by means by reason of securities are rings and these are cranes have not helped the fraudulent if it's you know that watch it because of the law i think is very clear now if there is a fraudulent i needed to i mean it he may please the court for the securities and exchange commission after an eleven day trial randall goulding a securities lawyer and investment advisor was found to have violated his advisors act fiduciary duties in many ways including by stealing millions of dollars from funds investors money for himself and relatives treating the mag as his quote personal piggy bank he also paid his own law firm co mingled assets systematically mis valued and over reported fund investments contrary to promises and producing inflated fees he failed to disclose the made misleading statements about this misconduct and more throughout in addition to his auditing and books record misconduct he did all this with cmdr as a lawyer with a prior tax fraud conviction who admitted knowing of the duties he violated and he was warned by another lawyer against much of it holding appeals only a small portion of the liability and run these rulings making mostly on preserved and only merit less fact intensive challenges that do not meet the governing standards including clear our  determining the amount of disorder meant reduce lou take that concept a reasonable approximation out of the calculus so as we expect no does not take it out of the calculus and the reasons are explained in our brief some of the very cases that mr golding cited actually reinforce the notion that once there is the reasonable approximation the burden shifts to the defendant to demonstrate what apportionment might actually be taken out of that and the reason that that's also reinforced in this case in particular is because mr golding's co mingling was the kind of wrongdoing and violation that also makes any doubts or ambiguity in the in the in the measurement in the in the reasonable approximation it redounds to his detriment  and that's fairly clear from all the case law prior to lou you did not say anything to undercut that and as we've noted in our brief the cases cited actually reinforce it so there i suppose a few points of clarification as to mr barry's argument for mr golding that we might make here one of them is that a lot of the focus on the connection to a fraudulent offering is a little beside the point because mr golding's opening brief actually talks about also including misuse and we talked about how the misappropriation we talk to in our brief about how misappropriation constitute miss you so you don't even need to get into any of the fraudulent offering stuff although we've also outlined things in our brief about that so that issue doesn't even need to be really implicated here but it's also the case that as we've explained in our twenty eight dollars j letter in our brief that there is no requirement that there need to be a connection specifically especially to  fraudulent offering or to a misuse of that nature especially in this type of advisors act case where it's clear that there is a breach of fiduciary duties in violation of the acts and that is the that that provides many breaches to be quite frank  that provide the basis for liability and much of which is uncontested and forward and for discord meant we could talk about more specifically about some of the factual issues if the court has any questions about them there are certainly there is there's certainly some inaccuracy is with respect to talking about what was and wasn't found by the trial court with respect to the misappropriation there are findings i believe they're not required short appendix seventy six dollars to seventy eight and that's something that is absolutely one of the things that the trial court would get deference on i could go to some other issues but i think those clarify some of the most important so if the court has any further questions i'm happy to address them they obey the law injunction rather along the lines of something you know in any trust case and says don't monopolize conspire to monopolize or agreed to monopolize and no one would know what that appropriate and proper released in circumstances that aren't aren't even as pressing for that type of injunction as as this one but excuse me doesn't this depend on the statutory language people have a right to know if they are about to undertake a course of conduct that may throw them in jail for contempt of court their due process concerns here and so i mean i could think of statutes that are very granular that would provide plenty of notice and i can think of statutes so we hope that we've given it that more attention in our brief because we haven't just laid out the case law that specifically says that injunctions that take this form are appropriate but we also laid out in page sixty of our brief we talked about context of the injunction but also when it discussed the other remedies because it laid out some of the and in the in the factual findings which it referenced in the injunction but i can if you allow me one moment i will i  for that matter i can't find the in drunk oh it's so in here it's not in mr golding's break it's not in the very lengthy appendix it is part of the what broke is pointing out is that there has not seemed to be a piece of paper that says at the top of the rule sixty five injunction and then is a stand alone matter sets forth the injunction you can find embedded back to the factor harkens back to the fact that if there's an injunction that's a a court order enforceable with rather strong penalties and people shouldn't have to sift through opinions and sort of deduce from them what it is under pain of contempt they are to do or not to do and of course one of the problems one of the concerns about an injunction even a rule rule sixty five dollars in john just says follow the law is that it becomes a shortcut for cutting out procedural protections such as the right to a jury trial either criminal or civil the judge in the future can then just wave his hand and say you're in contempt and all the normal procedures just fall away and that's a subject of some concern so if i had sampled the injunction had just said mr grueling isn't joined from appearing before the commission in capacity as a lawyer that would be very specific you would know exactly what that was he would know if he filed an appearance that he was in violation and that would have been one of those things  court thought that was unnecessary aspect of the long term injunction there and i'm not going to make up the whole injunction but that kind of thing is specific enough that somebody knows what they're supposed to  temporary restraining order that took that exact form i think this would be a poor case in which to to try to expound on some of those principles as to separate the separate document i apologize because as i said i am having trouble  finding the document right now i had thought it was in the judgment but but if it is not in the judgment even so those other those other injunctive documents which which have the same form and the only form in terms of the actual challenge that's been presented by mr golding with respect to the injunction so the one in which we were able to prepare to to address it directly and in this oral argument because that was presented  argument so i think that that that document as i said some of the agreement elsewhere may vitiate some of the concern that this court may have for it in this in this context and we'd be happy to further look into it if it's something else that the court really feels just comforted by but as we said you know our position would be that this was not a challenge raised by mr golding and it's one of the types of things that would need to have been raised as a problem with the injunction for us to have had the opportunity to fully flesh out our response as well viewing these convertible notes with formulaic discounts although inconsistently sometimes you seem to say he's just valuing attributing the value of that of the current stock price argue refer to formulae at discounts which makes me think there's a formula and i would like to know whether that's it or whether the formula wasn't really a formula it was just a practice of assigning the value to the convertible of the current freely traded stock price of the underlying equities oh so so it was a formula and the testimony goes to that for the for the long duration of time up until there was a very late memo that indicated they might do otherwise although i believe that they indicated that and i want to say it's either p x two hundred and twenty six dollars or p x two hundred and twenty seven dollars i believe those are the late memos in one of them i believe they indicated they would continue to do that they would scuse me that they would start doing liquidity discounting and there was testimony from one of mr boulding sons about how that didn't happen until that late date but not when when they did that even once they indicated they were doing that st there's the late two thousand and eight memo which is one of those two that i just numbered that shows that they were not actually doing that with respect to particular particular notes in particular holdings that are laid out on the pages i think are seven  thirteen cents of of that one it's also the case that then even once they were indicating i think it may have been may two thousand and nine memo so after this lawsuit commenced that they would take  liquidity discount the discount that they described was inconsistent because in part because it was formulaic with the f a s one hundred and fifty seven dollars and the standard that set out with respect to the a s r s and more importantly with respect to the factor based approach that was promised to be taken in the fund offering documents and that's something that we lay out in the brief so at the point that there was a promise to take a factor based approach it is a breach of the duty under the advisors act to then not take that into account the factor based approach includes taking account of restrictions among other factors  commission said of course the commission was looking for a considerably larger number than the six hundred and forty two before twenty two and the court took a pretty conservative approach you know just looked at some direct problems left a lot  e and then again used that number a much lower than what the commission wanted for the civil penalty i'm talking about what judge gilbert said so my i thought ok so judge get there's not apply so the question is this in the use of proceeds did goulding compensate himself more than he was entitled to be compensated what about the commission's evidence of all of all if you own entire company you're about to stop and say to yourself that by paying your own personal expenses you're not allowed to do the company that's well that's right so the question is exact correct i'm really glad that we finally got to this did he loot the company if he took more than he was entitled to he lead the company if he took less than he was entitled to he didn't lose the company yes he sees own documents say he's entitled to take had taken one dollar more than he was entitled to he looted the company but the evidence doesn't show that in fact it shows the opposite it shows that the entirety of his compensation can credit card bills and world series of poker white sox year period even apart for any performance based compensation was simply eight hundred and sixty nine thousand based simply on the subscription fees the three  allowed to take in as a management fee simply by reason of the simply by reason of the offering and take it to its sole owner now with the c is hinting at is if this is what they do with what blue coffee an entirely fraudulent operation exception in which case there's different rules apply regarding expense adoptions st of all gold is not trying to take an expense deduction so it's literally not relevant secondly if you look at the district court findings this is not a case where any intentional bile ations post offering had been found there is no and if there were intentional violations they didn't result in excess compensation and it is called an entirely fraudulent operation exception it's not caught entirely negligent operation exception all the findings that were made and summary judgment are non scientists are violations they are sustained by a showing of negligence and those summary judgment adjudications are not sufficient to show that that this was an entirely fraudulent operation the decisions that we cite the british american