may please the court counsel kara porter and john de lords and for the defendants appellant in this case and particularly the individuals jonathan and sandra hanley  what i would like to do is just briefly address the status of the personal jurisdiction argument that was raised in the briefing and then address to i think the two main pure questions of law with respect to the personal jurisdiction issue as as the court knows from the briefs the district court in our view did not rule in personal jurisdiction despite our urging that that was a requirement it doesn't really matter though right because isn't it a thing we would have to figure out on our own and we could just answer the question ourselves well i would love it if you guys would actually address the merits of our personal jurisdiction argument i think that would would be terrific i think that's a position that i know that in the brief i wanted to at the time there have been no ruling by the district mean are there any facts in dispute or is it just a legal question i don't think there are i think the evidence that was presented is and is under speeded so actually that would raise that would resolve the tricky procedurally show what happens when a district court issues sort of a related ruling later after the briefing is done in this case because the district court did issue a ruling denying the motion to dismiss i believe the f t c sent that supplemental authority but that's weird that's kind of like what if the judge you know six months later had issued a ruling on irreparable harm and you know if we think the judge had jurisdiction then does any of this matter whether the judge ruled or didn't as long as there really was jurisdiction i guess you argue there wasn't but if we're not convinced by that does it matter whether  not well i do believe that the procedure matters i don't i think the court the district court should address all of the elements of a you know a motion obviously it's less urgent now because we know what the court would do if if you re man did and i do believe that it's just an issue of law an application to undisputed facts and would welcome that i you know we're partly doing this as preservation of president our case say that if a district court rules injunction there was an implication that the court has determined that it has jurisdiction you know there are cases that say that but in this case the judge pacifically said specifically stated a different standard and that was the problem that we had as a matter of law our cases have said appear to say that if the core rules that it has if the court rules on the plea mere injunction there is an implication that the court has determined it has jurisdiction so why don't we just go with that and then proceed with the merits of the well i i will say that i don't know that that rule about the implication applies when you have expressed statement by the court to the contrary you know but you know the words on a test for jurisdiction is a test whether you have minimum contacts with the united states in general well we have as the court knows we have engaged in a very lengthy analysis of why we believe that law and no longer applies and when we've set forth our arguments on that we do concede that and tell it to the supreme court or perhaps the ninth circuit  that there is adverse precedent to us all in her our purposes here we have to use that test minimal contact with the united states which you clearly have so it seems like maybe this is a lot of time spent on something that's just clearly resolved already here if you know i i would rather talk about the other two legal issues however i do believe the procedure matters and that a court should not be able to just rule on a few of the elements and then later rule on those other elements look out i'm fortunately only have a finite period of time and so your time might be better spent on the arguments that you might have a little better right at the chance of convincing us that sounds great i would like to start with and there's two main legal issues one is the de beers issue the other is the second provi q just for shorthand purposes that the beers issue is actually a first impression and the circuit the f t c argued below and the district court believed that the this court had addressed it in the h in singer case but it was a completely different issue raised in that case what we have here are two different types of assets that have been frozen and actually i can refer you to page fifty one of the f t c brief where they actually are point out the two different types of assets there are ill gotten assets you know the revenue that you received or things you your boat if you had one that you bought you know those kinds of things were not challenging that those can be seized pursuant to the equitable authority those aren't an issue that's all that was that issue in h and singer what we're saying is that literally when mrs hanley's grandma's ring that predates any alleged misconduct it's just one example of assets that were frozen and then retained by the f t c that's a different standard that's never been addressed and i think it's because de beers makes it quite clear there is no real argument that that the relief in this case would be to disgorge grandma's ring now once there were some sort of a disk or judgment judgment and then they were trying to collect it then you can try to go get assets but what happened here was they literally took grandma's ring and other assets that predated the alleged misconduct and what we're saying is under to beers that is not you can't order them to disgorge assets that were unrelated not purchased illegal conduct i don't believe there was much of a factual dispute below about the specific items now i will admit i think since then i believe the receiver has now taken control or asserted a right to the porsche and i believe that was case is because first of all anything that is subject to disgorge men is part of the receivership estate and the receiver then makes the examination as they have done in this case for example taking artwork that they believe was purchased at cetera but they have not taken that position because there is no factual basis for it with respect to the trade account grandma's ring and the safety deposit boxes i do believe that in recent event they did make a claim on the porsche at least they told us that they're going to so but the others are are not those others are in fact under the control of the f t c which is confirmed on page fifty one of the  f and that's because they're not part of the receivership or the discouragement of state and that's where the problem lies here no one has raised in this district in this circuit before this issue about i'm just calling it grandma's ring because it is the most obvious example and i think it's because de beers has said that and if i may just briefly i would like it just to understand your argument about this is the problem that you claim they froze to a larger quantity of assets for the liability or that they've frozen assets that weren't subject to being frozen because they were commingled the la argument is our de beers argument our fourth argument about the scope of the injunction also talks about not the judge admittedly not having really any clue none of us having any clue about the scope but but that one i'm not focusing on given my time i'm focusing on it the only type of relief that can be granted in a preliminary injunction is the type that could be awarded ultimately and discords meant you could not order someone to discord something you know you inherited or why can't you friend is sort of more expansively at first just in case because you're trying to make sure that the remedies are still available later i mean well you can if you can't go through all sixty four i mean first of all you have due process rights to  this the indeed be ours the court basically knowledge the supreme court that you could go through will sixty four and if you can meet those elements those are the elements for the prejudgment rid of attachment the problem here is that for reasons that we won't get into but that all c lawyers talk about this case was brought in nevada and all of the assets that they're trying to freeze that are not part of the discords moment are in utah and rule sixty four incorporates the state law of the form state and in nevada you cannot go outside the jurisdiction act i'm not aware of any state where you can go outside the jurisdiction so that is if we think that rule sixty four tells us that the federal law flies and not  state law does this whole issue about what's coming will go away i don't think it's really disputed that rule sixty four incorporates the law of the state it does not set forth its own criteria for attachment but it doesn't rule sixty four saying that a federal statute can govern to the extent it applies over the law of the state so i thought it could be that the federal law was basically trumping the state law well except that there is nothing in claimed in the federal law here that  somehow separate or distinct from the issue of the prejudgment rid of attachment remember we're not complaining about the ability under the federal statute to get a preliminary injunction freezing dischord jubal assets that is the extent to which the federal statute would would come into play here we're talking solely about assets that are not just cordial that would only be able to be attached after they had a judgment or pursuant to rule sixty four that's that's the big difference there i think and if i may just because i do want to reserve a couple of minutes if i can i do want to briefly talk about this proviso to issue and the i guess i'm just then turns to state law which does not allow attachment outside of utah had they brought this claim in utah it would be a totally different thing but they rarely do that so that's the big difference singer everybody acknowledged those here there's a chunk of them that aren't and those are the ones that are identified on page fifty one of the risks of the brief it's about six hundred thousand in liquid assets mostly the e trade account i do want to at least ray i would like to reserve two minutes if i can but i want to not really been made and so for example you have some cases where this court is not actually identifying which proviso it is applying and for example we've pointed to some authority where a court is citing to a proviso one case which leads us to believe it's the case that citing is also a proviso one case but we can't tell we believe that the closest case we have is evans which we believe talking about are on page fifty one of our brief the long to name defendants to hand these themselves are named in the f t c action and therefore all of their assets are subject to consumer redress they have to go towards consumer or can go towards consumer redress this court only two years ago in fact in commerce planet we iterated the rule that there is no different question your honor sir ok so there are two things first what the assets that the handle is themselves personally own as opposed to their corporations the corporate assets their own assets are subject to an asset freeze because they can be used for consumer redress because they are hanging loose doesn't matter whether grandma is ring was bought with the ill gotten gain as individuals or defendants and everything they have might be at stake yes so going back to your question certainly there has to be some some connection if if the assets are one hundred million dollars and what the commission is alleging is two million dollars it would not be reasonable to freeze all one hundred million here it's exactly the opposite the commission in its papers and its p r papers alleged there were at least eleven million dollars worth of consumer harm that was done and with that number by the way now after some discovery has risen to almost fifteen million by comparison the the assets that have been frozen to to guide us in terms of what the finding has to be made by the district court in that connection do we just go with whatever allocation the f t c is made or is there some kind of finding that has to be made by the court in terms of the scope of the seizure of assets what do we look for guidance let me remind you your honor that this is a primary injunction i know that the district the district court multiple times in the hearing finding that the two to three million dollars see was consistent with the amount that amount of project at last where is that in the record that's not that's not in the think you need to tell us that we're not in that situation here in the district court relied on the term the receiver the court appointed receiver has reportedly been a report which in fact value gave value to all of the district court thinks there's more at stake than what was frozen your honor i don't know that the court has made an express finding in the language that you have stated what the district court said the c is alleging consumer consumer harm of nearly eleven million dollars defendants do not claim that their assets exceed eleven million dollars find in the record the finding that the district i don't think the amount of the suits came out at all in the know how do we know that the district court accepted what temporary receiver thought you said that because it was not challenge your honor they did not you that's a completely different argument over the folly related to it because it is absolutely related and that there is plenty of discussion about it and i have know how do we know so the question is how do we know the district court thought that the loss expected loss was going to be so big that it was justified in freezing three million dollars of assets a that's what we need to find in the record well first it was the receiver report put the success rate and even success has to be in quotation marks and i explain that in a second but the success rate at twenty percent how do we know the district thought that was correct it was in the hearing in the hearing itself the twenty percent is that you are in a good excerpts of record eighty five the receiver informed the court the day believe that the success rate is closer to twenty percent how do we know the court believe that where is the court finding that says i'm freezing the right amount of assets or where is your case that says that's not necessary one or the other in this case it's not necessary but advanced fees that the consumer had to pay in violation of the marse rule right so the you get to eleven million just from the advance just from the advance fees and but there wasn't court admitted that they collected advance fees so that part is admitted then it becomes to the extent that they have to show that their liability in terms of consumer redress is less than that it's their burden to show that in fact particular consumers even though they paid the advance fees illegally would have paid those fees after they've gotten their modification because they would have accepted that modification right so that they were making that argument i think and they were making it in the district too aren't they that though their entire argument in the district court is that their own review of their own database showed success rate of ninety four percent but isn't that all the same point that like if the success rate was ninety four percent then that would mean they would be able to show that people would pay these fees anyway correct but pick and because  the their evidence for that was a thumb drive that they gave to the court a couple days before the hearing might we might think but that ok that evidence was no good but we're not the fact finder so now your court says like i don't believe drive or this is silly or anything like that yes but did this record is your numbers are not consistent with the numbers i'm getting from the receiver and so i am at page one hundred the district court yeah that's the problem we our hand is that we've got a bunch of data that nobody's really got their arms around it so i'm just at a l to it's their burden your honor he gives them the chance he gives them the chance to continue the hearing so they can come up with better evidence and they did not take that chance could you point me in the record where the district court made the finding about but in the motions in the motion for the t r o and for that for the p r i the f t c had asked for primary injunction including an asset freeze as well and so it was because it was their burden to reduce that amount to the extent that they are saying again i have to stress their argument is not that their argument that they presented today was a that something called what they call unrelated assets which are not unrelated because the individuals are different the other piece that they are challenging the success rate is the one that it was their burden to show that the to convince the district court they did not the it's on page eleven of the of the order itself your honor three how do we even know from looking at this how many assets were frozen it's not even there aren't even descriptions of the assets here because it was not entirely clear yet what they are and we have to freeze them in order to go see what they are to make an accounting for them and how do we know again that we're not in a situation where they actually have one hundred million dollars of earth if they didn't have one hundred million dollars the court the judge repeatedly said i'm happy to modify the order according to what evidence you bring they never went back to say by the way you froze one hundred million when all the commission is alleging is eleven million but they deliver went back to do there's no limit in here on how many i'll just touch on a couple of the issues that have come up one would totally acknowledge that these assets relate to the or belong to the named defendants we simply say that you can't simply just take all of their assets at this preliminary stage even when they're not any of the alleged conduct and and so that you see clearly things that the individuals assets are subject to disgorge i mean there is some disconnect here i'm wondering what you're relying on to say they're wrong and i am relying on beers i really am on the on the distinction the fact that disgorgement is an equitable remedy and this court has addressed that many times in some recent case law it is equitable and it is fairly broad but it does still require that you're disgorging something that you weren't supposed to have she's been allowed to have her grandma's ring to say it colloquially because it's not ill gotten if i win the lottery i didn't get that through you know allegedly defrauding people and very even if she  defrauded people of one hundred million dollars and then say bent that hundred million dollars and is left only with her grandma's ring you're saying she could never have to give the grandma's ring to pay back the victims so i'm say once there's a judgment then you can execute on her assets just like you can with the normal judgment on the idea that's the under rule sixty five do you take issue with the fact that all of the assets except for the ones that you see are personal would be subject to free regardless of the amount th for in our brief for example we said at most it would be about six hundred thousand our client and this was like seventeen hours a day of making him go through actual client files because the f t c hasn't done it the receiver hasn't done it and came up with ninety four percent on the ones he was able to get through you know we had like a week to do this and we believe that most six hundred thousand dollars is subject to it it's in our it's in our brief could you just briefly address the issue of irreparable harm and whether a finding reprimand harm was required in this case yes because this is a proviso to case irreparable harm does have to be found there is a statement in the order that that has just no fact finding but a just a statement of a reparable harm but that's informed by the fact that on page sixty seven of the excerpt of records the court says he is presuming irreparable harm thank you very much ira thank you