this appeal the first is whether ever satisfied the jurisdictional threshold for claiming relief under section fourteen a of the nine hundred thirty four security  zakk it's our position as to that that the plight of simply never presented any evidence that that threshold had been exceeded and that therefore they did not have an implied right of action and question about this whether more than ten people had been solicited could easily have been determined there was time for discovery they could have been asked they they with no evidence was presented that there were no i'm actually puzzled by this time discovery business the time between the issuing the t r o and the hearing on the plumber and junction which was then later extended that it was about two weeks over the christmas new year's holidays ultimately was mr parents testimony that that they had not been solicited and then there were arguments that there might be some question or doubt about that but there was no it was their attempt to do dismembering his period i don't that was the for the defendants who said that they were not and that's and that's the status of the record so that on that basis then the third point is that you know first that there was that there was no serious question point of simply failed to satisfy the burden of proof and there was no basis then the legal basis for the broad injunction that was entered which allowed this these transactions to go forward with the factual finding that the court made to support the issu the breach to argued about thirteen thirteen there was evidence in the record that was submitted later on and that there was no that first of all of the disclosure requirements under thirteen b had been met and that there was no agreement among the shareholders that might have required any further disclosure there were e mails that were submitted by have to look at well what it what is the issue that there is this serious question about and what it all it's about is the number of shareholders who were solicited was not one of the three issues that you were going to outline for us that that's that's the that's a fair one yes well you were talking about here is to can a fourteen and and then you had two other issues and right one is the serious question and the other is the scope of the injunction nicolo before we get any for any further along others read to you from the order which i frankly find a little puzzling and i'm now on it's page nine of the order it's e r two ninety six this is what we've been talking about there are two sentences in which the district court writes that the court has considered the cast of mind and evidence before it and has determined on this record that plaintiffs have arguably not shown a probability the defendants violated section fourteen et however unresolved issues with respect to a certain shares and further discovery could be determinative of this issue further discovery what are we talking about or rather i mean i'm asking you to read the judge's mind but i'm puzzled as to what further discovery may be contemplated the procedures and so on this is this is somewhat opaque to me are and it is to us to the this goes back to what i said before there was full opportunity to depose these shareholders as to whether they were shareholders have been solicited or not and they did not prove that that had occurred and to say that further discovery could be determined i mean that that goes to whether it's a part of the serious question issue that's not a serious question as to whether further discovery might be determinative if the judge thought that there should be more discovery then the i would submit the proper thing to do would be simply to continue the hearing and allow more time for discovery but that isn't what was done so that there's there is no factual basis for that assertion they're going to serve and there is none given as to what what the judge had in mind what was  counsel for faber was that there might be some question about whether rufus perle who was the shareholder who voted for that the jubilee investment shares had a but that was simply said as a question and the fact is that the plaintiffs had admitted in the state court before in the district court that the vote was in full compliance with florida law and the district court found as a part of its order that the trent the shares had been voted in compliance with florida law so that there was no issue a reference to whether or not harry and david also had to be on board with respect to voting the shares in the july i i believe i believe that's what he's written again reading his mind i believe that's what he must have been referring to but again  e evidence was that that rufus pearl did vote the shares the plaintiffs had the burden of proving that that other people areon david also had to participate in that that was never proven and there was no no real issue about that but i think another way to look at that is that even if you say even if you were to agree that hypothetically harry and david pearl had to vote a s to vote the jube had to participate in voting jubilee shares there still is not ten shareholders who who were solicited because they there were only there were only that's still gets you up to six which is not in the either argument that's made is that that these that there were two other directors gash and netty who must have been solicited but there's no evidence that mr parents testimony in various affidavits and declarations and depositions seems to wander around a little bit that way but there's no find it's there's no finding based on lack of credibility as far as he because i thought maybe you would need to ask the pious counsel from our perspective what happened was that the harm was done the transaction was allowed to go forward to the shares were exchanged and so on all of that happen it's from our perspective it's up to the plaintiffs to move the case forward there's been nothing i think the case was about really was we believe whether these this transaction should go forward or not and when the court ruled that it position with it still and do it i think that would take a combination of things to do and i'd like if i'd like to address that i think number one with what this court could do with the to say that the injunction was improperly matter and the the resolutions the consent resolutions were valid on december ninth two thousand and four which were to remove the directors and to prevent to rescind the transaction now what needs to happen now because there has been a change in the board of directors there needs to be an election of new of a new board members there needs to be further action taken with respect to the transactions i think that's beyond what this court can do because there's no real basis for this court to do that there may well be need to be further district court proceedings but the key here and why we're here and the no argument that this is moved there's a no suggestion by either side that this is moot that the court needs to rule that there was no legal or factual basis for entering the injunction that the district court did and that that needs to be unwound and the case needs to be remanded back hopefully to another district judge because it's a it's apparent i think that that judge carol was prejudiced against mr parent for whatever  investors done anything with respect to the convert into that debt into shares it's my understanding in this that this is not in the record but this has been my understanding that they have gone forward they have they they did convert the their stock to dentures and then converted it back again as the result in theirs and this is i think in public filings the the number of shares in the company has increased significantly from like one hundred ninety eight million to three hundred  twenty some million and there has been another shareholders meeting based on those shares which we believe is illegal because the shares were not properly issued so the thing did go on and and  the money would your well they take you know that they had shares initially which they paid ten million dollars for they were shareholders with for ten million dollars and the status quo of the initial status quo would be to if possible to return those shares to them to unwind the conversion and the re issuance of the new shares there's no money that would need to be paid to them because they they started out as equity investors i would like to reserve my i see my time is getting down i would like to reserve time for reply the not not to i will make sure that he says what he or she needs to say but i to follow up on this ma'am and investors a little bit just to make sure i understand where we where we are and i also understand that this is post the time of healing maybe and outside the record but i'm trying to figure this out so that the merriment investors while they have converted dad into stocks they have not sold the stock do we know that now that that i don't know that we know ok really we know that they converted to demand sure's and then and then  converted back to their stock right but you know i think in terms of what you're concerned about third party good faith purchasers the fact is this litigation has been of record and disclosed and ok i really beat the second question more than a majority of the shares after the merriment conversion about i don't understand i don't believe they do because the effect of the stock conversion was to just increase the percentage all i can say is it's my understanding that their motion to intervene was denied and they withdrew their notice of appeal and which is their their choice it's not they could have they could have done here your honor i guess i guess if they if they wanted to be but they're certainly aware of this well and i and i so i do want to reserve what i think i think we have most of your argument at hand let's hear from the other side and we'll make sure you get a chance to respond or i thank you s have not been active in the case since the appeals this court was initiated because the injunctive relief that we were securing all  along had the effect of reinstating the original board of directors and all limitations on that board to govern gold spring in accordance with state and federal law were lifted by judge carroll filing on form ten q that tobar three a duly noticed shareholders meeting went out proxy statements went out financial statements went out to all shareholders and on october twenty sixth two thousand and five a shareholders meeting was held and a slate of new trust new directors it was nominated stood for election and the majority vote on that was that a new slate of five directors replacing the prior nine director board was elected now mr parent participated in those proceedings he took no action to challenge that shareholders meeting he took no action to challenge the election he voted in the election and  december twenty three of two thousand and four maintain the status quo it didn't reinstate the old board but it put severe limitations on what mr parent and his cohorts could do pending the evidentiary hearing which took place on january five right after the christmas holidays there were then more evidence gerry submissions to the court at that evidentiary hearing two people testified mr parent testified and was interrogated by counsel for both parties as well as the court and robert faber the plaintiffs and the ousted c e o also gave live testimony was examined by both counsel and by the court with the two witnesses at the election of the parties or by a limitation by the court we are limited to those two people know it that at that proceeding we were not  also submitted affidavits on behalf of others the defendants also submitted affidavits there were also documentary exhibits quite a few actually that were submitted and there were no objections to the  people given the evidence submitted at the hearing in front of the district court and i'm not saying this because of my reading of the evidence i'm just reading district court's order that strikes me as he saying there's a failure of proof tell me what discovery that arguably we didn't show a probability that more than ten persons were violated he says that the feds violated section fourteen a but i think we're down to whether ten persons more than ten persons were solicited   talks about the serious questions and the balance of the hardships tipping most decidedly in plaintiff's favor which the serious questions went to one point serious question went  to whether there was a fair chance of success for the plaintiffs to show that more than ten persons were solicited for her quote is over he says but he doesn't relate to this case at all he didn't say for instance there's a serious question on this issue or that if you don't like that he just quote the language from the cases from guilt and from clute found that's right but the but the evidence in the record both from the january five two thousand and five hearing and then comments made by the by the judge at the february put in the findings in the first place i think it was a pronouncement from the bench i think the court can look to pronouncements from the judge from the bench at the february tenth status hearing that the floor after the t r o was issued by the tiara was issued on december twenty three and then he set set the evidentiary hearing for january five so there was a basically a one day evidentiary hearing in january five and then following that he extended his t r o on january fourteenth he extended it again on january twenty seventh a day after he extended the t r o on january twenty seventh the parent group issued schedule fourteen c s d c filing an informational statement which the judge later said on the record troubled him because he felt it was misleading and then he had a status hearing on february eleventh at that status hearing on february eleventh he also took additional evidence as to whether the parent group was in violation of his t r o which had been issued on december twenty three specifically by issuing the schedule fourteen c s d c filing and by taking gold spring monies and paying mr parent and his wife so that was before judge carroll as to whether his t r o had been violated mr parent was not present at that proceeding and judge carroll was not particularly happy about that development be that as it may he then issued his preliminary injunction ruling on feb fifteenth which then prompted the next day the parent group to file an emergency motion to dissolve the preliminary injunction order that then led to a another hearing and on feb twenty five the judge denied the emergency motion but did clarify his preliminary injunction by saying that the record date for the shareholders meeting would be december eight two thousand and four which precluded the merriment investors from being able to vote which then prompted the merriman group to move to intervene and then at a hearing on march eleventh and more evidence was coming in based attach to the pleadings by the parties and in the record he backed off of his december of his feb twenty five ruling and said that he was going to vacate that portion of his order that set a record date he was going to permit the reinstated board to set the record date and he will tell you that after the narrative here  a you mentioned that there was something else that the judge had said that might supplement this order that he said on the record i gather in open court can you point me to that i was referring to this in  three fourteen to three fifteen ok hang on and then i just like we can do a little reading together here ok so where were he does he say things that might bolster the findings of fact or rather i think the almost non existent findings of fact that are in the order starting at page seventeen seventeen that ok i seventy are three fifteen ok i'm with you to mr parent in favor of mr favor he says he's concerned about what happened how it happened the difficulty in trying to ascertain issues with respect to solicitations how all of this happened at three o'clock in the morning one day and some other kind the other day and the changing of stories and the changing of dates all of those kinds of things are of concern to me and specifically we can point to the record where i mean they rely totally on  mr parents saying well mr parents that he didn't solicit more than immersed in can we stick to the last year on this one stick to the last in the calmer sense that is i'm interested in what the district judge himself said that might constitute a finding  fact that will bolster what he sent in his written order and i think anything beyond what you put pointed me to here no other than other aspects of his february fifteen order where he nothing in here that relates to the question of whether or not ten or more people have been solicited now but the but the record is is sufficient to show that there was a fair chance of success on an issue which was all that was required as of the date he issued the february fifteen order and we're supposed to decide there's a fair chance of success by our sort of reading the record yes and i have all the record cites i mean the there's admission that four people were soliciting we know that going in rufus ron has well george that but but i think he's bringing it all together i think you can a fair reading is in the deference to be accorded to him on a preliminary injunction ruling is that you can link that back to the fourteen a she was well why would i p articulation in the order itself needs to stand and under fifty two and i understood i think i understand your point is that it may not be as great as you would otherwise like if you had written it yourself but that said the court having articulated it said very simply at the minimum only said there's a fair chance of success as to a fourteen a question as i understand your position if for the discovery was done and think i just have difficulty with that because of all the evidence that's been produced either it existed at that time or it didn't and i don't know where he gets the fair chance of success given all the going on at that point and by the time in february when he entered the p well i think the excerpts of the records demonstrate where he could come to that conclusion that there was a fair chance of success if hypothetically what you're saying is that the relief then would be too would be to remain for judge harold to make more clear  here i don't think that would be appropriate because what you have here is a is a factual issue in twined in a legal issue of whether fourteen a to b two comes into play or not the ten the ten person solicitation exception but whether it comes into play there is some question as to whether it applies you know there's no question as to whether it applies but it but there is the issue is whether the the take over group was entitled to that exception from the fourteen a three proxy requirement but intertwined within that is the is the factual issue to which the standard review was clearly  clarify that because there we can point to evidence in the record before this court to support the serious question standard now i was against  myself i'm inclined to find that this injunction is not proper was poured into reverse because of that the question for me again i emphasize speaking only for myself whether in sending it back to the district judge we leave the preliminary injunction intact and tell the district judge has another chance to look at it why should we or should we not do that say leave the plumber injunction intact until the district judge and has another chance to look at it but because i think it was all of the other side comment on exactly the same question i think because of the evidence to in the record and in his opinions about the balance of the hardships tipping decidedly in plaintiff's favor he  goes on in his february fifteen order about his grave concerns about mr parent his prior conduct of misappropriation of funds and his worry that forcing himself back again and the evidence before they do with the corporation how would we know what in the hardship question here is it may be driven by the concerns he had about just a parent but that's the that seems to me to be an equal issue that the hardships this is a shareholder issue in hardships and it seems to me go both ways that is use you say well let's keep this group in planes because we have some concerns about parents misbehavior i don't see that issue but it's not even this group because given the fact that the  injunction runs the risk that events that take place later may make the relief sought moot because of that shares have been issued shares have been bought and sold and the parent group that tried to take over with by cobbling together fifty point eight percent of the shares that were then on the books of the transfer agent that's no longer the case there their position now is down south of twenty six percent and there's no there's been no annual meeting proxy statement so then let me ask you this if i may you said in response to my question at the outset that you thought you presented an eye for evidence that that hearing i in other words you don't want more discovery i mean you've discovered as much as you want on this question i think for the for the preliminary injunction standard yes i think i think we have met that this is not an opportunity for discovery problems there and there simply isn't isn't evidence in the record that more than ten people were solicited i think what what has happened here and in mr hockey's argument he has confused two different ideas one is the facts that are necessary to be proven to establish jurisdiction to begin with and then the question of likelihood of success on the merits which might be a sliding scale but but here there was a burden to establish the facts relating to i think we understand that let me ask you the question that i asked mr hockey and that is if we were to reverse and just say that will fifty two it was not complied with and that we therefore think the injunction not supported so we sent it back to the district court why should we or should we not keep the injunction intact and tell the district judge has another look at it i think the answer to that is that there was at the time by the time of the evidence you're hearing there was full opportunity for the plaintiff to present whatever evidence they had and mr hockey said they did whatever they thought they needed to do if the court finds that there is not sufficient evidence in the record to support the injunction then the injunction should be vacated that's simply error like any other ruling that's not supported by the evidence and then then the question is which is  violation of fourteen a he didn't put the other way he didn't find that there was a violation i believe that and submit to the court that to sustain going forward with the injunction he had to find based on the evidence that on the record that there was a violation of forgetting that what harm would there be if we were to continue the injunction until the district judge another chance to look at it because there is nothing more for him to look at and i'm not asking that what to your client would there be if we allowed the injunction to be to continue in place until the district judge had another chance to look at it and after looking at it with a remount for us he may say well you know i really can't make the final or he could say i can't and here it is i mean i don't know what he's going to do but but if if you but if he goes back and says well with yes i i'm looking at it i reaffirm my injunction then we're right back here again because his finding a pretty quick trip goes back and focuses on the record and makes the findings i don't know what findings he's going to make if he doesn't make them but but my point is that on the record he can't make those findings because there isn't any evidence as you argue and if he did that would be clearly erroneous like that and so there's no pill there's no point in it so and we were looking at the record to find that it was impossible to make the findings i guess we could be done with it we don't and you vacate the injunction and then the question is  can't make that finding on the record that it would be clearly erroneous at least we'd like to hear from him first so he has a test for slate us based on his findings should we leave the injunction intact and he's doing that well i think the question for the court could could an objective district judge reasonably do that based on the record that's very different question but i understand i don't think you want to answer my question other just i think the question is practically what happens if we force and and simply remove the the balloon injunction to say it was wrong reversed the injunction what happens next well i think what that would leave in place would be the situation that existed on december ninth two thousand for it because the effect of removing the injunction is to say that the the resolutions were valid and there's no question that they were valid and appropriate under under florida law there is nothing wrong with them as a matter of corporate law or florida law so if you say that and if the result is that the resolutions that were entered were proper then you and there's nothing that impedes the corporation from going forward then the question becomes what does the corporation do you have and whatever water has gone under the bridge since and what we believe needs to happen is that  there and this court i think could could say this as a part of its opinion that the if the injunction isn't valid then the record date should be for shareholders should be december ninth two thousand and four and there shouldn't be recognition given to the conversion and reassurance of shares that were permitted because of the injunction and then it's a matter back in the district court of deciding how to re that's beyond this court's ability but certainly i think that's where we need to get back to and i would hope and urge the court not not to send it back to judge carroll for further reflection on his order because that would just perpetuate the problem and what we have asked for seriously is in a record recognizing that the court has discretion to do this is to send it back to another three man to a different judge and start over again with a different judge who doesn't have the there right yes at page fifty eight of our opening brief thank you thank both of you for your arguments in this case the case of parent versus