off in this case you don't need to reach your wrist you don't need to reach the collateral source role although that applies as well the point of both of those cases that's where you have a fight created by defendants who are dryly and separately liable there should be a set off or some sort of pro rata pooling and distribution in that case that's only fair and an equitable because otherwise you risk the chance of a double of an actual double recovery and those cases the pend on that fact and the collateral source rule is consistent in that there is an exception the only case that we were able to find that really related to this was not in the in the ninth circuit but is in the seventh circuit the fisher versus of pasta location and the in related states bankruptcy which which was henri man and in that case they were that are appropriate or whether it's going to have a liability that doesn't apply to this case those rules are set up to prevent this kind of double recovery situation and create a fair pulling and they're limited in such a way as to prevent the receiver a trustee where a lot of people were to fraud it there were individual claims by the claimants there was a trustee appointed to to liquidate and to go after the same group with the fandom the cases that the receiver cites which he claims are on relatively all four sons on this the people that were that supposedly own those securities at the time of the receivership after already proving and making a key point of the receivership plan that whoever own anything at a particular time was only a matter of chance and making the discretion that c c l had over all of the assets the core point and the core principle for pulling together c l under the receiver's investigation had discretion over everything they can however instead of pulling those assets the receiver distributed them he did so on an interim basis very early on in the case with the reserving all right the receiver specifically identified the to the clients that had their private and their public securities on it in some cases the mic stand together there was in the out statement for the appraisal of the missouri kansas sheet metal workers actually i recall in the record actually shows some public blows up publicly bad things are going on that nobody knows on the outside about the bad things does that investor know ok i've got fifty million dollars invested through these people and thirty million sector you know that the deal maybe they were great investments they were kind of normal stock market is that this is a key point there's no evidence of any investigation of whether there was fraud in the public security because there's no way there's no evidence in the record whatsoever that there was no fraud briefs even where the pre receivership operations are not fraudulent courts have refused to allow tracing of assets were to do so but for most of the unequal treatment of similarly situated creditors the point of this receivership was discretion and no disputes the fact that discretion covered all the securities whatsoever the court was never presented with the argument made by the receiver now that there was a problem in the public securities there's no evidence on the record of that and there was no discretion exercised on that issue distributed rate a place like this reserve the last minute of my time i'd like to address the public security issue i think we've exhausted the the very party recovery issue at this point first i would take issue with counsel's characterization of the fisher case out of step and circuit  what justifies that difference in truth absolutely there was in the receiver's judgment the the fraud the negligent underwriting the swapping of clients in and out investments and the ultimate ponzi scheme that developed with respect to the wilcher debacle papeete only on the private investment side and there was no evidence that claims were being swapped in and out of the publicly traded stocks i decided to put one particular client in a publicly held stock versus real estate or a private investor on within the private investment portfolio yes but the in the investment advisory agreements often had categories that is so much in public and so much in private i don't think the receiver ever said it was a matter of fort hundred percent discretion to do whatever it wanted with the money then yes you are correct to the extent it put money into the public's that was c c l's so only if the client said i'm giving you five million dollars but the only thing i'm going to allow you to do is to invest it in the public stock market when you're not authorized to invest in anything else then in hindsight that turned out to be a more prudent investment decision than those know in the receiver's reports the interim reports and i believe it's in the first very first one which is in the record there is a description of the various types of an investment advisory agreement so i don't know that there is a specific count as to there were fifty like this one hundred like this one hundred fifty like this but there is in the receiver's first report a description of the varying types and the total total correct correct and i believe the number is a two hundred eighty five of them were invested in both private and public so if the math is correct at least sixteen only in the public distinguishing factor is that these were identified as public securities easily portable transferred to merrill lynch or whatever other broker the client decided they wanted to move them to and although the receiver did reserve the right at the very beginning and mr oxman is correct because the receiver didn't feel however by the time two years later the plaintiff distributions was proposed to the court the receiver determined that it wasn't appropriate or necessary and although not impossible in the strictest sense the administrative burdens at the expense of the time consumed far outweighed any benefit or any strong cause for having to first i want to reiterate there is not a shred of evidence and care of the absence of fraud in the public securities in fact there is evidence of that clear connection between the fraud in the public securities and the fraud and the policy restrictions they were on on anything that they had and you know this court can't i don't see how it's possible to affirm on the on the basis that there is fraud and i've tried is the distinguishing feature when there isn't any evidence of whether it was and that that that principle would not support the actual existing plan as it as it exists because you would also need to look at all the private investments and determine whether there was rotten those you know we've said look we don't have buildings there's no fraud in that building why shouldn't that be excluded also the receiver suppose a determination is not made up our based on any material evidence that was presented to the court all of it off the only whenever you see that in their briefs you can look at the evidence or excite and it just says something very similar to the receiver made a determination that's it no evidence there's nothing for the court to evaluate another thing is it's just not the case the record doesn't show that there was unfettered discretion throughout the whole c c l around the first amended receivers reports that it talks about on page one fifty two of the record and one fifty three of the record the typical investment management agreement i am allow gro did not address their administrative burden that might be involved if we were to crossed the public securities into the park that's right there was no there was no declaration or other evidence or even discussion on the part of the receiver about what administrative burden that would take he simply said we're not including it if you look at the motion that's precisely what it says and the court doesn't even look at it in it in the order and there's there was no evidence on which to do it and it's not at all clear that there would be a heavy administrative burden in fact  through the plan and coming up with the plan the receiver and the court and we discussed this a little bit in our brief decided that it would be much easier to make an allocation and turn an adjustment on the public securities because the values were clear you didn't need to go and get an appraisal  of this pool of c c l assets if we said we're going to adjust for it we never change that and you know that share one hundred shares of i b m was worth x amount so you would otherwise get you know two hundred dollars from the receivership now you're getting one hundred dollars