purchase first capital holdings stop trying to refer to it as f c h through shearson brothers a securities brokerage firm controlled by american express against the person or persons who would be responsible for the loss and secondly the engagement was to preserve those claims until they either could be settled for him to look complaint could be file litigation the goal lines also sued shares in american express in certain senior officers of those firms for fraud consumer fraud and other planes which were dismissed on a motion in which otherwise from the trial for a settlement of the hearing numerous witnesses after hearing mr steinberg who was mr goal firings broker test by over seven hours and after hearing a litany of experts call by the bendis judge b law decision area damages in the amount of four million five hundred six thousand six hundred two dollars which reimbursed the goal fines for every purchase of f c h st except their first purchase and that purchase was made to the point in time before sure sin american express took control of s c h  in american express was sell session on the eve of trial were three point two million dollars the total damage is that could have been recovered against shares in american express was approximately four million three hundred thousand dollars again there's no catalyst here that of the three point two million dollars settlement the goal fines only net to themselves one million six hundred fifty seven thousand dollars the difference was paid in legal fees and arguing you know you should stop the interest running on the money you get from a sale of your stock when you get that money even judge gordon wasn't suggesting that you got money in two thousand and seven you would fight back t sounds like a lot of interest today when a treasury bills selling it probably no interest that percent was not a lot of money in one nine hundred eighty three most of the kind is based was ending ten percent reflected the reality what the market th would have had that money he certainly could have done more than earn ten percent i think it's clear from a cooker that what should have happened is you compute the amount of the rescission which is four million five you applied eleven percent which gave you i think about nine million dollars of interest you had both of those together and you'd be ducted from that receive a reasonable tourney's he's not supposed to be out of pocket in this case because the underlying case within the case was so incredibly complex the bullfights attorneys put in over eight million dollars in time to receive to accomplish the result when they were soon we were seeking a fee from the trial court we reduced that eight million dollars down to a little more than five the trial court looked at forty percent fee is appropriate we just think it was applied to the wrong case the forty percent fee should have been applied to the amount of the rescission the amount of the accrued interest the amount of the reimbursed costs and that forty percent fee would have come out to be around five million dollars which bears amazing similarity to the five million dollars we requested for is a lodest where it was discretionary our situation is much better for the successful malpractise plaintiff because the state the fees are mandated negligence was the client who loses i a self blame the statute sort of set i don't know if a single statute you know i this is an old by the way if your lawyer somehow makes a mistake you can sue him because you watched the g s take advantage of the statue it's inventive but there's not a single case in illinois or elsewhere that we could find that supports this notion investor should be made whole in other words he or she shouldn't have the money they're entitled to receive the waiver situation reduced because they have to pay legal fees and you know to to say this was  reasonable these it is the actual cost when heard to pursue the claim that filing fees but all the cost of your expert cetera there's just no basis for  a which was an insurance company that was heavily invested in junk by betting particularly towards the end of that period that shearson would buy him out at a substantial profit  that he was under no obligation to pursue shares and he did so at great length and a great expense and he didn't do that as a gift he did that for purpose because they allegedly had done intentional wrong and interior that claim was resolved there was a substantial question whether he had suffered any damage which is one of the essential elements of the mill practice claim and so in many cases like the crack a person by felony case cited in our brief this quote is held that there is no cause of action for malpractise until harm is actually suffered if there's an existing claim that is viable and being pursued until that claim is resolved you don't know whether you suffered harm or not and certainly  damage assessment in that case his initial settlement demands which obviously could have been inflated were in the nature of twenty five million dollars but his expert it's reflective sixteen to eighteen or nineteen million dollars even in that case for fraud oh he did sue barry first on all on a malpractise negligence there you know intentional wrongdoing there whatsoever for plus five point seven six million in interest and one point six four million in attorney's fees both under the penalty provisions of the i s l so his total recovery was five point nine million from derek fares i don't three point two million from shares and which totals nine point one million almost exactly twice the amount he actually lost in terms of his investment but that was not that somewhere in the neighborhood of eighteen million dollars for that one point three million that he did not preclude supposedly because he had lost his eye as hell a point he rests this extraordinary argument for  damages that are certainly aggravated and punitive eighteen million on a one point three million dollars loss and we might even say vindictive in the word of this statute i'm professional  that has violated that statute who clearly has nothing whatsoever to do with malpractise and it has nothing whatsoever to say about male practice damages and the general  when it spelled out who was to be the target of that ten percent interest rate or that attorney's fees award specify that it was underwriters dealers sales persons who deal in security searches no mention of lawyers there's no mention of it negligent mel practice in any shape or form so you have to keep in mind the general assembly did not direct an award under the i s l calculated by kugler standards against al practice lawyers this course in context versus nelson many many years ago the opinion was written just the seymour simon so if you an idea said the rescission provision of the act is a penalty is a penalty designed to compel compliance with the terms that it and to understand why this all makes sense section thirteen perfect provides this rescission area relief against people who violate the securities law  but it gives them an out it says if they get if they receive notice and are told how much the losses suffered as a result of their violation they can promptly repay that plus the interest right away and there will be no further relief well that out that portion of the statute an integral part of that portion of the state she was never  the common law basis that is assert is is just not meritorious the weissman case which they cite is a divorce case in which this court held that opposing a few petition by her attorneys in the course of a divorce proceeding will not bar i race judicata fact a subsequent malpractise case because you don't get the that or application of that certainly not in this context and certainly not with respect to the statutory penalties that are imposed on other parties in the met mill this case and the only supreme court has held several times that this does not mean identical relief in the tragic case the parties came before the court and said well punitive damages that the jury in the mail practice case said we would have run in the underlying cause should be compensatory to us because we would have that money right now in the supreme court said well they may or may not be that may or may not be the case but we are now toward being punitive damages this case against lawyers and furthermore in that same case that plaintiffs argued that the jury found a judgment in the last case would have been entered on a specific date and from that date until the date of collection he would have been earning by statute nine percent interest under five to thirteen zero three in the supreme court said well let's look carefully at that statute it doesn't say anything about hypothetical judgments it doesn't say anything about malpractise awards we limit that statute read we read it nearly to apply and so on where it may be the case that you would have gotten that nine recovery through workers count and thence ross the claim against the wrongdoer so i had complete relief of damages against the wrongdoer and only supreme court said no you're not getting that complete relief and your employer is not going to be able to recover but it would normally take the least nine out of your your if they did and the court said specifically an attorney who commits malpractise cannot be considered the person liable for the employee's injury or death row by the same token the birth firm may have committed malpractise here but it is not at the securities firm and you do not levy against it well i think basically what it is is a policy decision by the illinois supreme court limiting your work common long recovery on the negligence claim against a law  this case and the lane first half will said you have to apply this i s o very narrowly because it's in derogation of the common law and so they didn't extend the right to recovery from purchasers who are named in the staff to the ass and the this point about the penalty that did us a period of damages contacts as i just said specifically recognizes this is a penalty this rescission procedure that it is designed to coerce securities dealers people in the securities interest a to follow the statute in the first instance and b to make good on violations that both both if it's not to violate and then if you find yourself in violation as a yes absolutely and that's why thirteen seek gives them the out i discussed earlier which you know we didn't we didn't have we weren't in a position of the law to comply with the up and so i say you know a i agree with you except that it is clearly a recognition of the people character and now even if the i c l interest appl prove and it would have been very easy it's not quite so easy when you demand five million dollars in attorney's fees to have established it but it's never the less it would have happened quickly but he couldn't say when he couldn't even give an estimate of when bad judgment would have entered as the jury found a judgment entry date a hypothetical judgment entry date and trite and so he didn't say when they had cut off would be how they said in their brief that there might not have even been a first appeal in the shearson case well that's ten years ago before in one thousand two thousand and ten years less of ten years interest so they did not prove the amount of even assuming this applies and you don't concede that they did not prove the proper amount of interest it certainly didn't run until the date of the male judgment so as so you suggest we should follow  well i'm about to get to that point what i'm saying is you should deny a ten percent interest all the interest because they did not prove an amount a date of the cut off so they did not prove when the interest would have stopped accruing and they did not prove what the appropriate actual amount of interest they would have recovered if they prosecuted that claim would have been ok but now i'm turning to the point you just brought up which is the fact that the judge there was a basis in the record for the judge's conclusion how the judge calculated interest and although we don't think it's correct because we don't think it should apply in all he base specifically on mr gold finds expert on security saw mr moreno who testified not once but twice specifically if you take off the amounts before you calculate the interest he the judge in and he said exactly the same thing was the question the judge asked that the expert related to the statute he asked yes he asked how do you calculate this interest i view by the ten percent interest under th yes and under the supreme court's decision in mcmath which we've cited to this court we think they're bound by that calculation you know as a practical matter as well if you start saying well he was wrong was completely wrong and needs to be retried on their base so it's not just an easy thing to say ignore what my expert told the court and i'm that one point sexpert also by the way testified that i think that there were no punitive damage allowed under the i a self which i believe to be the correct result but there were a number of points in this you can't simply walk away from them they're bound by their experts testimony on their record and certainly you can't criticize grounds given that this is not a statutory case but it's a common law negligence case to deny ten percent interest under three point two million that mr goldfine recovered as a result of the claims that were covered by the tolling agreement that my client provided for him i think that the court was within its discretion in setting that factor u for such a set off and so and we also feel on the few issues that the court exercise discretion properly and knew about the mcniff case and and cited even so if you get to that point obviously we don't think you should because we think attorneys fees are punitive like the ten percent interest under the stand but all this i think is putting the cart before the horse because as we argued on our cross appeal there are several reasons why why you don't even get to liability liability was not established as a matter of law you know once again kunt turning to the contacts case  this case the i a cell is being wheeled it is a sword against my will my client the law is clear in this is as a matter of law that friendship or prior experience with a broker in the financial safety that to repel a case of this court is quite clear on this point we also say that federal cases of emergent capital where the the broker relied on the person relied upon was a court held in central states we cannot act with ice close to the available information and there was by february and march of one nine hundred ninety very very substantial information in the public in january to the junk bond market that basically collapsed taking first executive with it and dragging first capital down first even if you credit the notion that there was some confusion in the early days between those two organizations but a month later there is clearly no confusion as clearly justification based on the extent to which first capital in its own right had junk investments and that was made perfectly clear in the march wall street journal article that is in the record is defendant's exhibit fifty seven talked about their first showed if you look past the opening of it that thirty six thirty eight percent of the investments were in federal bonds of a company and nevertheless the next month in april class of the seventh circuit has noted that the c e o writers tend to be puff pieces little advertisements and that the financial data that follows them is what you eat to look at if you exclude the separate and the august ninety purchases that is and that's over two million dollars which is more than the difference in the settlement between sure seven and four point five  and would result in zero in out the damages if you exclude only the august purchases and mind you keep in mind this is one point three million dollars he spent on this stack in august of one nine hundred ninety after all of this information with the junk bonds came when their stock was it such a rare point it was something like eighty eighty five percent of its recent high itself or a  shares he accepted that three point two million signed a release saying that he was releasing all claims not only that he had but that he ever had ever had specifically included in that  a position that any payment on that would be a and this would be a double release double recovery on the release but even if not the reality is that the trial court gave him a trial would have happened and so he wound up getting thank every celt it was better than he would have achieved in the real world and the illinois supreme court in the eastern states says that's error no one ever testified how much more he might have recovered in damages and so it is it is clear that he had to prove his quantitatively although it would there's always some element of speculation in these cases the case within a case is always involved some speculation you have to be able to say specifically what difference this would have made a trial counsel challenge him before during and after the trial to demonstrate specifically what he was talking about and that evidence was never and so i'm going to give you a couple ok thank you very much i'm just going to i just would like to point out then that it though at the bottom it is also the case know actually did not lose according to his testimony director's on did not lose this claim for him he said underoath repeatedly that the first time he ever heard about this cause of action was itself says that you need to have challenged of the vote ability and there are many illinois cases several of which we cite that talk about how you get actually have to know that you have this right  he refiled it without putting in all the explanation about this letter from march sixteenth which this court in the shares in case used to say he clearly had consulted counsel and he clearly knew where that letter he c in effect didn't live up to judge william that is absolutely outrageous absolutely outrageous and they also miss describe to run that's exactly what mr research testified during t unfortunately no court is ever except that theory of damages so although we like to say it was never presented to a court because courts just didn't buy that approach we've also best statutory remedy they were denied by president chairman board of risk capital say he thinks that most people who invest in companies like his have a long view they don't make a decision based on one of these markets you also pointed out