hundred ninety nine opinion whereby the court indicated that the fine imposed by the commission had no basis in the record and is therefore an abuse of discretion the court the fines that have been assessed against other individuals similarly situated to mr miller versus that that's the commission is trying to impose against mr miller mr miller in his hearing down below as the court may remember had seventy seven witnesses against him out of three hundred forty six customers and the commission has tried to use the seven to show that mr miller had violated the three hundred forty six customers this the court rejected for obvious reasons i believe and and correct reasons but what the commission then does is it goes through a history of their penalty assessments in the past and then they indicate that yes they are will able by statute to assess one hundred thousand dollars per violation but it does not do that it says since we're only going to assess three hundred fifty thousand dollars we don't need to go and complete the analysis and i don't think i submit to the court that that is not consistent with the court's opinion and the court's charge for the commission at this point i can't answer the question to mr geller the question being what am i paying three hundred fifty thousand dollars for your customers well but the seven hundred i mean why does that work as an explanation well it doesn't  absolutely not true well the l j found that there were untruths but for these seven customers they didn't lose anywhere close to the amount of money that the penalty assessment is set to indicate nor did mr miller make anywhere close to that type of money at the end of the day didn't he make an commissions almost with an almost an equilibrium with what is clients lost in their investments i don't believe that's correct i didn't make about four hundred thousand dollars in commissions and his clients didn't lose about four hundred thousand dollars well we're talking about the seven i'm going to list all i'm sorry overall isn't it correct at the end of the day that he earned off of all of these customers about the same amount in commissions money in his pocket that they lost on their investments that is incorrect that's not correct that is not correct for what i taken and somewhere close to that amount of commissions mr miller got to take in that kind of a commission in one thousand nine hundred eighty seven he didn't make four hundred forty seven thousand dollars in commissions not him personally the brokerage house may have besmirched didn't lose four hundred forty eight thousand the customers may have lost an amount but they just really lost more than he made the customers lost more than of the court was this court was to the see f t c going to remand it the matter and why it's because it's not based on the record before the commission nothing in the record that would support that type of the sesame especially in light of the penalties that have been assessed by the commission before and after mr miller's case what kind of penalty w just getting the money back if nothing was curing and believe me the if i may the penalty that has already been assessed which airs he's been banned from the industry he hasn't worked in the following the following the hearing on the facts before the ale j a l j came up with an initial decision of two hundred thousand dollars now the the the way that inability of mr miller to pay a fine the after that hearing the a l j who had initially indicated two hundred thousand dollars he had rolled the money back to fifty thousand dollars finding that mr miller's ability to pay was fifty and so he assessed him fifty now that was another factual hearing where he had an opportunity to assess the credibility of not just mr miller but other division a order of simultaneous briefs so you can't wait to see who's going to appeal it was our belief at the time that the government would have appealed and if not then or the division of the fortune would have appealed and if not circumstances which take to assess the gravity based on its prior case law which took into account the nature of the offense what kind of violation it was in this case the violation of its core provisions the anti fraud provisions of the statute and also considered mr state represented made false representation that he had made the case reminds me a little bit of throwing darts i mean at one point they said fifty thousand yet the fact th thousand dollars that was remanded because he did not consider net worth he imposed fifty thousand calling his analysis of net worth the commission receiving that back found that mr miller had waived his right to have net worth considered because  necessary to ensure that there is no financial benefit for violations of the statute how can there be financial benefit place limits future financial benefit now retain reason for the fun for me even though it bored you to make sure that it came the benefit of the legal and also to deter others for the believing that this is record shows i mean the commission has considered and focused on a variety of factors which include financial circumstances which include and financial consequences and if the record shows the losses of the customers that's a factor compression considers if the record shows the against the individual has attained that is a factor to consider but the consideration of financial consequences of the action that is subject to sanction is just one factor impact here that was not on that where those considerations on the record that is something that the commission stated policy is to consider but at this stage in the absence of any s effect on the seven customers spend occurred over a period of four years which reflect the scope and frequency of violation commission found that those individuals had lost approximately one hundred thousand dollars the commission took that into account  particular against more subjectively the record does contain information that the commissions were approximately half the value of the customer losses but that that is an extrapolation based on the general a maximum sanction of a hundred thousand dollars per violation in this instance we have seven witnesses the commission found at least the minimum would be seven hundred thousand as a maximum penalty but that every represent misrepresentation is potentially a distinct violation the commission chose not to simply articulated that as a theory of analysis of violations and found that its three hundred fifty thousand dollars here was well below any possible statutory maximum it might consider but no we don't view it as that and the commission's case when it looks at what the record shows concerning financial consequences is not a direct one to one translation fully understand that you're on and that's one reason as the court sees in the opinion the commission has had its own analysis trying to refer back and drawing comparability analysis to which prior applications of penalties so as to build go and particularly in a multi year incidence of the commission of fraud and how to customers have been affected but it is a fact that comparability come from bill is a consideration for the commission it's not expressly a referred to was an illustration by the commission that there are circumstances where the financial gain apparent by appearances that that's again evident on the record was more than the the fine on the record those cases all predate i believe the change in the statute so all of those cases have to press financial penalties because of the network  matter because that's not what they say they set forth a no history of relevant cases with it with these considered to be relevant and in that  see that most of those cases if not all are looking at somewhere between forty percent and fifty percent of the monies gained by those  individuals that's not the case here is and there's nothing like that they're looking for you know ten times the amount of gain or if i think you know some amount that has no bearing to the facts before this there were only three commissioners at the time three out of five and the dissent was by the person that became the acting chair and the acting chair indicated that this was not a decision that was satisfactory to the ninth circuit opinion she disagreed with the way that they arrived at assessing the three hundred fifty thousand dollars penalty and that's what we are saying to the court today that the court was pretty clear on what the c f teach the should do when they really have value weighted the assessment of a penalty and they will be submitted thank you very much