your argument next in case seventeen ten seventy seven lorenzo vs the securities and exchange commission sure hi i'm mr chief justice may please the court in janice capital this court held that only the maker of a misstatement can be held liable for that misstatement under section ten b and rule ten b five b the court below correctly held that petitioner frankly renzo was not the maker of the statements that are at issue in the two e mails in this case however the court below erred when it held that lorenzo could nevertheless be liable for those very same misstatements under a theory that by producing and sending those statements he engaged in a deceptive act artific seventeen a says to a chain money or property by means of any of any untrue statement of a material fact that seems dramatically different to me seventeen is a government provision meaning only the government can sue under seventeen why should we be treating the two identically i don't know that anywhere in the brief you explain that i know that we've had made general statements that the to inform each other but certainly not on this critical point because janice was based explicitly not accused of violating and we agree that so subsection two may be a better way for the f c c to proceed if they're going to try to hold petitioner liable as a primary violator because it almost fits very closely here because that's the equivalent a rule twenty five b but the same point can be made mr heigham with respect to ten b five a and c and also with respect to seventeen a one and three right that the idea is is look janice was a decision that it was a very textural decision it's it interpreted the word make it it had lots of examples from real life about who makes statements and who appeals that the judiciary is always recognize the difference between deceptive conduct and deceptive statements so take this case mr lorenzo here sent false financial information to potential investors he was when he did that he was the head of the investment banking division and he sent this full financial information and you can see it in your yellow brief you can see that quite a few times that he did so with an intent to defraud so he he says he press and and in the e mail is sent that contains false financial information and i am looking for example i'm looking at the language of ten b five c do you think he has not engaged in an act which operates as a fraud we do your honor for several reasons one we do what we we do not think that he engaged in any conduct that violated ten b five c because in order for ten b five b to have any meaning i guess i'm wondering just take i understand that argument and it's i think a serious argument but pretend that ten b five b was not in the statute for just a second and you're entitle to come back to it but just pretend it wasn't in the statute is the behavior that was charged here and that you've conceded was done with an intent to deceive is that engaging in an act that would operate as a fraud no no your honor for a couple different reasons one the congress has set up a statutory scheme for what constitutes aiding and abetting liability and one of the key distinguishing features between primary liability and aiding and abetting is the concept of substantial assistance to a births the court below found that there was sufficient attribution in this e mail to greg lorenzo because it does start off by saying that it's being sent at the request of greg lorenzo and the record in the d c circuit after looking at the commission findings found that greg franklin's a was not the maker of the statements in the email and one of the reasons for that finding was because it was attributed at the start of the email to greg but to see if i understand your position it's irrespective of that fact in other words suppose that mr renzo had made the email had come up with the email himself if i understand your position you would say well it's still not part of ten b five c because that's a misrepresentation and misrepresentations can only be charged under ten b five b isn't that what you would say i thought that that was what you just told me well though that's slightly different than our hypothetical because the question is really whether something in addition to just mere misstatements you make a misstatement did he personally make a misstatement i think i thought your answer was no he did not make a misstatement no he didn't and that was with the decency act for so then why doesn't fall within see why does your rule that if it's a misstatement it can't fall within anything other than b help you when you argue that he didn't make a misstatement he did something else so why doesn't fall within c because mr lorenzo didn't engage in any additional deceptive conduct other than making once he was deemed to be not the maker of the statement our view is consistent with the majority of circuits sort of consider this question is that some other inherent deceptive conduct would have to be engaged in by  no your honor that's not our position there can be cases where there is both conduct and misstatements which see would cover our position is when you have a case like this one when there's only misstatements and no deceptive conduct that in order to allow a plaintiff to repackage those claims as claims under a and c would render tempi five be meaningless and also the d c circuit set the bar very low if sending an e mail that was prepared by somebody else constitutes enough of an action to constitute primary liability it would really leave no room for any sort of the aiding and abetting liability it would convert anybody that perhaps gives some sort of substantial assistance to a primary violate i don't see how you need to get into aiding and abetting he said he's a principal under  because the concept of primary liability really ties in to an act of the statute and the regulation discusses concepts of using employing which implies a certain level of back to conduct here in this case we have two emails that were moments apart and that the contents was essentially prepared by his boss greg lorenzo i'd like to go back and my question on that point i'm looking at the petition is appendix one zero seven it sets out on no your honor the record no holding below is that the email as a whole came from the boss greg lorenzo not from petitioner and that the petitioner franklin renzo was instructed by greg lorenzo to send the e mail out to two clients that were clients of his boss i'm so i could think i'm having a problem from the beginning once you can see it which i think you did that you're not challenging that your client he has the act of putting together the email and encouraging customers to call him with questions not to call his boss with question how could that sanding alone give away your case well i mean that that makes him both a maker of and false statement whether his boss shared it or not and i know the courts below thought differently but it's also engaging in a law practice or course of conduct which would operate as a fraud to seize upon any person whether he was a maker or not he was encouraging the customers to call him directly about buying or so behind what was being merit think you're tying into what our position is with respect to what more would be necessary to convert over mr lorenzo into a primary violator because if those customers had in fact hauled frankl renzo which they did and he would then have repeated the statements or he would have been gauged in some other type of deceptive conduct but merely producing and sending emails is such a low bar that the d c circuit said mr haim we've made very clear in central bank that this idea of primary and secondary if your actions fit within the language of the particular provision of the statute that you're charged on then you're a primary violator of that provision right and even if given some other language you wouldn't be were given you know some more common some other understanding of what it means if you fit within the language and you violate that language you're a primary violator that's what we said in central bank and i guess the import of these questions is he fit within that language he engaged in an act that operated as a fraud just as king in our view is that you can't take that language in a vacuum you have to consider it in context of the statutory framework that congress has put into place for aiding and abetting liability because if you were to find that frankly renzo engaged in a primary violation here it would undermine congress's statutory intend for setting up in section section twenty of the exchange act exactly who is an aider and abettor and the key distinction is somebody who provide substantial assistance perhaps here the little because that is useful because there are some people who don't fall within the language of the statute and nonetheless can be charged as an aider and abettor under section twenty if the f c c does that if it's not a private action but what we said in central bank is look if you do the thing that's the that is described in a particular subsection of the statute or of the or of ten b five the rule that implements it then you are a primary violator as to that subsection our view is that mr lorenzo did not engage in conduct sufficient to form a violation of ten b five c for instance when you look at the the case law has a much higher standard for what constitutes violations of those provisions so in order for mr lorenzo to have become a primary violator he would have had to engage in more active misconduct if he for instance would have  up a phony purchase order to substantiate one of the points of the email if you were to go on to the internet and produce content on your phony aliases these are all those would have been bad too but i guess i just don't get why the act that he did and i was using the language of c o though honestly one could just as well use the language of a because we've said that a fraudulent device is just a scheme to defraud will you run it it has a terms of prescribing fraudulent conduct and that line of cases says in order for conduct to be fraudulent it has to be either deceptive or manipulative and the cheer relic a stands for the proposition that unless there's a  omission or some sort of manipulative trading that those are essentially the three categories of fraud that are proscribed by section ten b i have to say i think that that works against you that the principle because you're right that all of ten b five is coming off of ten b which refers only to manipulative or deceptive of devices or contrivances but it's well understood that misrepresentations around missions are manipulative or deceptive devices or contrivances and just those misrepresentations alone i mean if if some of your arguments were correct if you took them to their logical extent you would have to say that misrepresentations and omissions don't fall within that language of ten b which just escaped and that's when you get into the importance of the janis decision because once franklin's i was determined not to be the maker of those misstatements even argue it takes him out of the category of misstatements and i understand that your argument would also take out the makers of those misstatements not necessarily because the makers of the misstatements would have liability were not contesting that here and it's not one of the issues that that's an issue our view is that once mr lawrence was deemed not to be the maker of the misstatement the courtin would like to see well as their real mission which there isn't here is their manipulative trail but i thought i thought you said just a short while ago that sent simply sending an email is is is not enough yes mr chief justice so then your distinction depends soley on the content of the email in other words it's it gets down to the basic question of whether or not frank lorenzo was involved at all in the drafting so for you for you to prevail we have to understand him as i guess you argued at one point not even reading that e mail just as i don't think in order for us to reveal you have to make that finding our position is that the hort should establish the test that the rentals conduct has to be something that's inherently deceptive and that would be sufficient to push him over the line from being somebody who was not the maker of the misstatement but could still somehow be held liable on your rules i mean he'd been working with this company for quite a long time and these investors and so what is it that makes this just aiding and abetting maybe he didn't make the statement that he was sure a big deal participant yes just and to be clear mr ron's org knowledge in the record of the trial that he made a mistake and under our position mr runs or would not get off scot free there's very stringent remedies against aiders and abettors as well as reference before section seventy two which is not at issue here would seem to perhaps fit much better because it's a it's a subsection that deals with obtaining money or property under false statements and that doesn't raise the same janise issues and that doesn't raise the distinction i'm that's what i'm having trouble with whether seven to eight to was charged or not is irrelevant because the way seventeen structured it's not controlled by janice at all because it doesn't talk about making statements it talks about obtaining money or property by statements there's no reason why we should limit under janice or otherwise limit three from or seventeen a want to or three from taking their natural meaning if you make a materially false statement intentionally which you conceded he d subsections and it said that each subsection prohibits a different type of conduct and in order to give meaning to each of the different subsections it just cannot be read in such a way to say that every claim for instance for misstatements could easily be brought under seventy one or seventy three you're suggesting that because he refers specifically to misrepresentations that those misrepresentations do not fall within a or c but i guess to understand that view of the act which is everything prohibits something different you would have to for example think that a and c are mutually exclusive what's the difference between a and c a and c you run or are closer together they both deal with fraud they both deal with deceptive conduct this purport doesn't have to reach the issue as to whether or not there's a difference i don't know been we have to understand what the statute is about your present and one view of the statute which is that each of these or the rule which which is that each of these different sections is is is apart from each is apart from the rest that each for him it's a different thing from that and i guess i'm suggesting a different view of the statute which which is which a and c make pretty clear that these are very overlapping one overlaps the other overlaps the other they're all meant to centrally address the same thing this is a kind of belt and suspenders statute where it's like we're going to find every possible way to say this then in order to make sure that fraudulent acts are covered we'll just skiing we don't dispute that there maybe some overlap between the different subsections but here in order to sustain the d c circuit it would really be a wholesale elimination of one of the subsections which is rule twenty five b and that would be contrary to the to the holding orally versus united states where the court is is the purpose is to find meaning for each of the different subsections and not read it in a way that would make one of them read but then i'm going to ask you again what's the difference in meaning between a and say well the diff they both deal with conduct and i don't know if there is a real meaningful difference between a and c because they both have very similar language between the two but i think the court can as as the lower courts have they can consider a and c is one type of fraud which is conduct based because the content language is very similar the plain language of a and c and the courts below  just the misstatement claims and say that those misstatements standing alone can somehow be enough to satisfy the language of a c which is a conduct based fraud and if the court was to uphold that view it would  the well the if there is inconsistency is in the record but overall the import of the testimony taken together was such that it was greg lorenzo that was the creator of the e mail and the maker of the statements and the f c c has not challenge mr michel mr chief justice and may it please the court petitioners decision to send e mails that grossly misrepresented the financial prospects of his client and to give illusory promises designed to deceive investors into backing a business that he knew was failing constitute the quintessential securities fraud his conduct falls within the plaintext and the common sense meeting of section seven hundred of the securities act section ten b of the exchange act and subsections a and c of rule ten b five well your honor a couple of points in response to that first of all janice will still have significant meaning especially in private actions because janice limits the number limits who can come within ten b five b and the janice opinion was careful to distinguish between eaters and abettors who are sort of background actors the speech writer example is the one that the court gave preparatory actors who aren't themselves employing a device  or engaging in an act under see but are instead merely supporting that so our contention is not that everyone who has some involvement in his statement will somehow become primarily liable under a and c and second seventeen a as justice kagan said central bank was very clear that the test for primary liability is simply that the defendant has to satisfy all the elements of the statute and central bank says expressly that even if somebody is a secondary actor in some colloquial sounds like a lawyer or an accountant that person can still be primarily liable under the securities laws if that person satisfies all of statutory requirements as petitioner did here and as i don't take him to seriously contest his argument seems to be that subsection b of ten b five has some sort of  preemptive of fact in that it serves as the sole vehicle for bringing claims securities fraud clients will often state that's not how i understand the argument and as i understand your going to go something like that pre season about five or six steps i think  first central bank says we got a look at the statute rules nice but let's look at the statute so we look at the statute of prohibits manipulative or deceptive devices essentially well no manipulation is alleged here just alleged just an action could you could you could have an actress race of fraud by act or omission only x charged here and the only act seems to be this statement issued to potential investors and we have a finding from the d c circuit that it wasn't made that act wasn't made that statement wasn't made by this defendant now we could maybe overturn that i suppose and you could argue that but if you didn't make the act of fraud then doesn't that necessarily imply he substantially assisted if anything i think that's the argument so i think it was maybe around step four that i disagreed with you and that is i think you said that he didn't make the act but i do distinguish your point on the text of the statute in the rule what the d c circuit found was that he didn't make the statement and therefore he didn't fall within the text of ten b five b but the only act of fraud you have to have an act that deceives someone else and the only thing that deceived anybody allegedly here were these e mails right that he didn't and he didn't make them that's well the disease l j found that these are going to firm that he did personally produce are you challenging that i understood the government to they were not challenging the d c circuit holding that he didn't make we're not we're not challenging the finding that he didn't know the statements but we but the d c circuit also determined in the l j that he did do the act and if you look at the language see rule twenty five see he engaged in the act of sending the e mails and i do want to make clear that this is not simply retransmitting the statement he sent the e mails on behalf of the investment banking division which is exactly what his boss calculated would make the statement and more of this i think we're getting stuck and then i'll stop i promise is that the actress reyes for fraud is the act of actually deceiving a nother person and the only thing that could have done that here would have been the transmission of the e mails to other persons but i agree but i think a transmission on that yes but the transmission of the statement in the abstract you know doesn't does nothing it was the extraordinarily deceptive as was common to earlier there were three gross mischaracterization of the company under the representation that they would provide different layers of protection sure so i understand the position  sleep issues office taking the position that janice controls seventeen a two no that's not the estes offices position is not the commission's position it wasn't charged in this case you're right your honor but we would not say that it control you know why i don't actually know exactly why a two wasn't seven t n a two wasn't charged in this case but the reason we wouldn't take that position is that the verb make is not in seventeen a two and that is critically the word that the court was interpreted in janice on that point i do want to make clear that janice was self consciously a decision only about ten b five b the i think it was the second question in the oral argument in that case from justice sotomayor was why isn't there a claim a scheme claim in this case and petitioners response was not that it's clients would have been liable under that theory it was that that simply had not risen in the case so janice was clearly just deciding the meaning of b which i do think goes to the real flaw in petitioner's argument which is again that subsection b s somehow restricts the meaning of a b five and also somehow restricts the meaning of subsection a of a completely different statute the securities act of one nine hundred thirty three and i do think it's a quite extraordinary argument to say that the commission could by adopting a rule in one thousand nine hundred to change the meaning of a statute that was enacted by the congress and signed by the president in one nine hundred thirty three in fact you know this court has repeatedly rejected that kind of field preemption or an exclusive remedy argument in the securities laws most prominently in the affiliated huge case where the court says quite literally even though petitioner is not the securities seller in that case is not liable under b he is liable under a n c because those provisions are not so restricted another good example is the herman mclean case that we cited in our brief their position was the defendant was found liable under rule ten b five for misstatements or omissions in a registration statement even though section eleven of the securities act applies expressly to misstatements and registration statements in the court in a quite extended discussion said we're not going to apply a theory of displacement we're not going to apply a theory of exclusive remedies in fact both of the two statutes the securities that in the exchange act have clauses that say they're not the exclusive remedies for fraud mean other than trying doing something to to create in the mind of the hearer or recipient a false belief that is  material i think that's a good i think that's a good description of that's black's law dictionary it's good enough ok fine if that's what it is if that's what it is there could be two ways of doing it one you make the statement yourself up to your part of a group where someone else makes the statement but you play a pretty important role in the you might be the boss of the group in which case you're not a native or a better so if you're not the maker but you do in fact give rise to perhaps as the boss the force mis representation wouldn't that be covered by c yes ok i know that your position but i just wondered why this isn't fairly simple because now what we did in genesis is we took a category of things which we thought the maker had made the false representation and we thought no he wasn't the maker but of still he might be the big boss of a group of people who in fact took actions or made statements to cause the false representation to rise in the mind of the listener i thought perhaps you would agree i do i do agree i do agree just it seemed to me as your basic argument that the that's correct and you know we recognize there was a close decision in janice but i think janice is ultimately a helpful decision for the commish i was thinking about it that way but i dissented in genesis and so i don't want to be one of well i actually think i don't want to be over simplified but i also i think you know one quite simple explanation for janice is the court simply followed the text of the rule and that's precisely what and there was a dispute about it but everybody agreed that you were going to interpret the text of the rule and we believe if you interpret the text of the rule here it is quite clear and i think petitioner is almost conceding i think that his conduct falls within the meaning of a n c it's only this argument to be somehow restricts or supersedes or back in the chain of drafting copy you know for example a marking director who drafted copy that it was sell itself not deceptive but that that person who would then be used in a fraud or you had a speechwriter who drafted something that was not wrong but he knew was later going to be used in a fraud that person in our view would be an aider and abettor that would not be a primary violation for the important reason that rule ten be that section ten b itself requires a deceptive act and simply submitting material that you know is later going to be u fraudulently would give you the requisite men's right for substantial assistance but not for a violation of ten b five b itself and janice will be the critical cases in those scenarios between primary liability and secondary liability and that's of course essential in a private action because there is no cause of action after central bank for aiding and abetting in a private action and generally the difference between liability and no liability for people in that situation now i do this is thinking of someone who does prior to janice would have made a state and now that seemed to be excluded in jane so the guy i mean and now we have a way of making for that set of people janus irrelevant because the aiding and abetting argument you just made would have existed prejean isare and the james one possible out of tude is to say so much the better but that perhaps would be the dissenters out to and so so so what is the answer to the chief justices question which was raised by your opponents that it still has life and in fact makes a difference people who before and after maybe in the private context what is that what is meant by let me try to be clear before janice there would have been an argument that somebody far back in the chain of making a statement was a maker of the statement and primarily liable under ten b five b that means there could have been a private action against that defendant after janice that argument is no longer available with respect to people far back in the chain who didn't commit one of the who don't fall within a or  primary violators now we think that's not this case because because her does fall within a n c so the f c c would argue that somebody that prepared one of these documents that contains fraudulent material or knew that it would be used in a fraud in other words you would say oh don't worry about that that person is not a maker he's not going to be liable because of janice before janice we would have said he was a maker but we accept janice and now we would say that that person is an aider and abettor who could be pursued by the commission that's that's the decision that we've cited and in our brief now i do want to make a point that aiding and abetting liability will not always be available and so it's tempting to say that that's always a fallback for the commission first of all it course is not available at all in a private r of action which is one of the principal ways in which victims of fraud can recover money but it's also not available even in a commission action unless there's a primary violation you have to find the primary violator and that distinguishes this from typical criminal aiding and abetting under eighteen u two so you can easily hypothesize a situation in which somebody who makes the statement perhaps a high up corporate executive or a board of directors lacks the c enter required for primary liability because they don't know what's going on with the details of the financial reports they're trusting the lower down people to do that and the commission can't pursue them for a primary violation because they lacks an answer and then the commission can't pursue the aider and abettor because there's no primary violator and that would we submit to are a big loophole in securities fraud law and with that would be a very damaging result for the commission that i don't think congress intended and that i don't think is within the ordinary meaning of the tax year my friend said a couple of times that try to draw a distinction between conduct and statements and  some of the questions suggest i just don't think that holds up to start with the stone ridge opinion expressly says that the petitioner's course of conduct included both oral and written statements so this court has made clear that conduct can include statements and  in addition section ten b itself which i think he was saying something to the effective if it's only statements it can't be content i don't think that can work either and i think it was your justice kagan who suggested this as my friend said take him to to concede his conduct so unless his position is that all statements are contrivances and covered by ten b for that reason i think he's conceded that students are devices under ten but i think what i'm what i heard and remember we can see an interesting question what the argument is but i had understood that all right one can create a false impression in the mind of another through conduct or through statements right here the only thing that was alleged to create a false impression the mind of others was this statement and that's the problem you have if the only false step act the only actress risk was a statement and he didn't make it then one well i think  he didn't make the statement we the d c circuit found but he still employed the device to defraud or and your help and i mean there's no doubt about it he did a lot to help but he didn't engage in any independent conduct that created a false impression of mind of the other other than disseminate the false statement that did that well i guess i might quibble with the last point that the other than his quite important he said for sure and you you you you've penalized him h going to be able to on anybody's account but we're trying to draw a line here between primary and secondary and that's that's where i'm stuck while on the facts of this case your honor there is no secondary liability charge so if the co would not be punished or not worried about justice only counsel did want to make that one point you made the point but you but you can see we've got a bigger fish to fry than that right i agree with that and i do think you'll see sort of higher stakes and more sophisticated frauds but i don't think you're likely to see a sort of more egregious fraud than this where it petitioner in addition to transmitting the statement that was made by regular enzo sent it as the head of the investment banking division he asked he offered a follow up with statement then what is the question i suppose that the answer to that is that sending an email is conduct took x to get to those minds right absolutely and the act it took in particular was sending the email sending the two emails without which these investors never would have been i do very strongly think that the act was what led to the deception it helped the deception but the deceptive the thing that caused the deception and one of the other to get back to justice briar's quotation from black's was the statement in the email that the iranians fax transmitted to investors in the e mail right that's it not cause the deception unless it gets to those readers i agree with that i mean i suppose another way to think of it is if petitioner had efficient or had called up the investors on the phone and said you know i hope you just got the email that i sent this is not my statement you know i didn't make it regular renzo made it but boy you really want to look at it because it's a great investment opportunity and if you have any questions let me know the investment banking division if we use it as you said just to clarify when you said i agree with that when you agreeing with just discourse which were just escaping i think it was  a distinction between conduct and statement oh ok no yes you know i mean don't we make statements all the time through cond yes of course thank you all so it was a favorable question and you know i think it runs in both directions that the court has said you know in criminal law cases the court has said that not every crime that you know involves some sort of speech you know necessarily raises first amendment concern i think it's a it's a well grounded principle that conduct does include statements but i suppose a final point is we're sort of searching for meaning for b i do think the court has you know reiterated on many occasions that even a provision that seems redundant or that doesn't add anything to the substantive scope of the law can still serve a valuable purpose by clarifying or by marking out what the heartland of  of the violation is and here if you look at the history of the securities laws rule ten b five came about nine years after the securities act which had changed the common law rule and brought disclosure and statements to the fore as a rule as a responsibility for those issuing an trading and security so it makes sense that rule ten b five b which would mark out statements as a particular area of concern and would say if you can show that somebody made a statement then you have shown liability under ten b five but i don't think that that in  forecloses liability under a n c and as i said earlier the affiliated you case i think is squarely on point and says somebody can be liable under a and c even if they're not liable under be justice alito is opinion which we cited at page thirty six of our brief in leak case from the third circuit i think it's helpful on this point too in that case there was a statute that covered both crimes of deceit on the one hand and tax evasion on the other hand and justice alito subpoena and explain that a tax crime that was not evasion but still involved deceit would be covered by that statute because you knew aeration of tax evasion didn't preempt the field or didn't serve as the exclusive vehicle for all tax related claims and i think the same analysis applies here  any cases that cover simply sending an e mail album behalf of another would qualify for primary liability secondly the loophole hypothetical that was discussed as well and the concerns about him hindering sees enforcement program are really unfounded here because the f c c in addition to having aiding and abetting liability also has seventeen to which covers specifically a situation where a person uses a false statement to obtain closer fit to what the conduct is here and it would not have raised the serious issues with regards to undermining congress's statutory framework with regards to aiding and abetting he abetting and the requirement to have substantial assistance because as just as course it's noted mr lorenzo did not engage in inherently deceptive act sending an e mail is not inherently deceptive in our position consistent with the circuit co is that the act in order to take mr lorenzo out of the category misstatements and into the category of a and c has to be something that's inherently deceptive and it otherwise it's just a matter it's a very low bar the act is the sending of the e mail and the the conduct that occurred here with gregory runs i was the actual maker of the statement so frankly renzo is essentially a conduit he somebody that's transmitting statements you know  enter in this case behalf of another but at the same time simply sending an email is not enough to transform frankly renzo into a primary violator from perhaps somebody who gave substantial assistance  furthermore they had the language of the statute in the rules of the clear distinction between statements and conduct and here in order to transition mr lorenzo out of that subsection b realm and into a and c and even into seventy one there has to be some inherently deceptive conduct such as a creating a phony purchase order or phony contract with charles vista to raise capital those are the sorts of serious conduct that congress had in mind when they established the distinctions between primary and secondary liability and if there are no further questions thank you counsel case was submitted