[00:00:14] Speaker 03:
All right, council look like you're ready.

[00:00:16] Speaker 03:
Let's proceed with our next case, which is 23-1339 US SEC versus Mediatrix Capital.

[00:00:26] Speaker 03:
Ms.

[00:00:26] Speaker 03:
Ashmore, you may proceed.

[00:00:30] Speaker 02:
Thank you and may it please the court.

[00:00:32] Speaker 02:
My name is Tracy Ashmore and I have the privilege of representing Michael and Maria Young, the appellants.

[00:00:38] Speaker 02:
This is an interlocutory appeal

[00:00:41] Speaker 02:
of the trial court's failure to reduce a $250 million asset freeze that was put in place to secure disgorgement after the United States Supreme Court and Congress made clear that the maximum disgorgement remedy is net gains.

[00:01:02] Speaker 01:
sequel, a claim that you just keep coming back on.

[00:01:08] Speaker 01:
And I guess my first question for you, you seem to have bought into the jurisprudence from other circuits that in order for you to keep bringing an interlocutory appeal in this context, you've got to show some change in circumstance.

[00:01:31] Speaker 01:
Do you agree with that?

[00:01:33] Speaker 02:
Normally, yes.

[00:01:41] Speaker 02:
Here, what I would like you to consider is in our first appeal, this court, and you were on that court, said that you could have reached the merits.

[00:01:56] Speaker 02:
but that you elected not to reach the merits in part because you wanted further adversarial testing below.

[00:02:02] Speaker 01:
I've gone back and reread that opinion, and I'm frankly baffled on how you get that out in that opinion.

[00:02:08] Speaker 01:
What we said is it was waived.

[00:02:09] Speaker 01:
They were all waived.

[00:02:11] Speaker 01:
And that we didn't reach the merits because they were waived.

[00:02:16] Speaker 01:
So my question to you is, first of all, do we even have jurisdiction to hear this if there's been no change

[00:02:26] Speaker 01:
in circumstances from the prior two times you've been up here?

[00:02:33] Speaker 02:
I've only been up here once before.

[00:02:35] Speaker 02:
And so, yes, you do have jurisdiction under 1292A1.

[00:02:40] Speaker 02:
You have jurisdiction of any order refusing to modify an injunction.

[00:02:46] Speaker 01:
And my question to you is other circuits have recognized some limits to that language, even though it's written very broadly.

[00:02:54] Speaker 01:
Right.

[00:02:54] Speaker 01:
And in your briefing,

[00:02:56] Speaker 01:
you seem to endorse those limits and try to show that you can meet those limits, including that there's been some factual change in circumstances between last time you were up here and now.

[00:03:15] Speaker 01:
Okay, and first of all, do you agree that there are limits

[00:03:20] Speaker 01:
on the right to repeatedly file an interlocutory appeal from an order refusing to dissolve or modify an injunction?

[00:03:31] Speaker 02:
Certainly there are limits where the issues have been cited on the merits.

[00:03:35] Speaker 02:
I mean that, the judicial efficiency principles and all of that would 100% make sense.

[00:03:40] Speaker 02:
I wanted to expand a little bit on our previous colloquy because where I did get from your prior decision

[00:03:46] Speaker 02:
You said you could have reached the merits, even though the issues were waived, but elected not to for further adversarial testing.

[00:03:54] Speaker 02:
I also want to point out that the January order, the January 2020, I believe, order that was the subject of the first appeal was specifically denied without prejudice.

[00:04:08] Speaker 02:
And the words without prejudice have meaning.

[00:04:10] Speaker 02:
In connection with a case that's dismissed without prejudice,

[00:04:14] Speaker 02:
The clear meaning is that the motion can be refiled or that the complaint can be refiled.

[00:04:20] Speaker 02:
And so the trial court denied without prejudice.

[00:04:23] Speaker 02:
We appealed.

[00:04:24] Speaker 02:
You did not reach the merits, finding that the issues were waived.

[00:04:29] Speaker 02:
And we then raised the specific issues that you had found to be raised.

[00:04:34] Speaker 03:
How is the record in this appeal different from the record in the previous appeal?

[00:04:38] Speaker 03:
When, you know, related to indigency?

[00:04:43] Speaker 02:
The Youngs are indigent, and that has been the case from the prior appeal till now.

[00:04:49] Speaker 02:
One thing that's changed is the amount frozen exceeds the amount available for disgorgement.

[00:04:58] Speaker 03:
That's on the plus I'm kind of curious on.

[00:05:01] Speaker 03:
I mean, the district court was charged with making an assessment of preserving assets for defrauded investors.

[00:05:10] Speaker 03:
Correct.

[00:05:12] Speaker 03:
the ability of the Young's to mount a defense to the SEC's claims.

[00:05:18] Speaker 03:
And it found that there was no evidence that any of the assets were untainted.

[00:05:24] Speaker 03:
Do you agree with that finding?

[00:05:26] Speaker 03:
Or are there assets out there that are untainted?

[00:05:29] Speaker 03:
I think I saw there was evidence of a personal jewelry and some other smaller assets.

[00:05:38] Speaker 02:
Untainted isn't the word that I would choose.

[00:05:41] Speaker 02:
We are at the prejudgment stage, and there's been no determination of liability.

[00:05:45] Speaker 02:
But as far as are there assets that did not come from the results of the Mediatrix business, they are de minimis.

[00:05:53] Speaker 02:
I will state that.

[00:05:56] Speaker 02:
What's changed is if there has to be a method to determining a prejudgment asset freeze, it would be the amount that the commission can recover through disgorgement.

[00:06:09] Speaker 02:
And there are more

[00:06:12] Speaker 02:
than enough frozen assets to satisfy the commission's disgorgement remedy.

[00:06:17] Speaker 02:
And they still can't get any of the money unfrozen for legal costs and fees.

[00:06:23] Speaker 04:
Well, before we leave this point, the SEC says in its brief, and I'm quoting, Young's concede that the amount of their frozen assets, about 6 million, does not exceed the amount of estimated ill-gotten gains that they possess, 8 million.

[00:06:39] Speaker 04:
Is that correct?

[00:06:40] Speaker 02:
No, that's not correct at all.

[00:06:42] Speaker 02:
Right now, the receiver is holding approximately $7.4 million of frozen assets from the Youngs.

[00:06:49] Speaker 02:
And the Youngs have always said that there is no evidence supporting the commission's $8 million estimate.

[00:06:56] Speaker 02:
If you look at your, this circuit most recently, looked at the Lew disgorgement remedy in Camarca.

[00:07:03] Speaker 04:
Well, could I just?

[00:07:04] Speaker 02:
Yes.

[00:07:05] Speaker 04:
Let me just add to that.

[00:07:07] Speaker 04:
because I quoted from the SEC's brief, but now let me quote from the district court, which said, again, quoting, there's still no dispute that the assets currently available will be insufficient to compensate the defrauded investors.

[00:07:20] Speaker 04:
And the Youngs have not shown that the assets are untainted by alleged underlying fraud.

[00:07:26] Speaker 04:
Is that clearly erroneous?

[00:07:28] Speaker 02:
Yes, it's clearly erroneous because we said in our brief that the Youngs did, that the commission was over-secured as to the Youngs.

[00:07:37] Speaker 04:
We do not know.

[00:07:38] Speaker 04:
Well, you may have said that, but to show it's clearly erroneous, don't you have to point to, is there something in the record that shows that?

[00:07:46] Speaker 02:
There's nothing in the record that supports the $8 million number from the commission.

[00:07:52] Speaker 02:
Nothing.

[00:07:53] Speaker 02:
What's in the record from the Youngs is approximately $7.3 million in frozen assets.

[00:08:02] Speaker 02:
And the method of determining disgorgement, whether prejudgment or post-judgment, is de novo.

[00:08:13] Speaker 02:
It's an issue for de novo review.

[00:08:15] Speaker 02:
And so with no evidence in the record whatsoever supporting the $8 million number, Comarco was post-judgment, full record on disgorgement.

[00:08:28] Speaker 02:
And the commission's numbers were reduced by 20%.

[00:08:31] Speaker 02:
If you're going to take that as an example, then the youngs are over secured by approximately a million dollars.

[00:08:40] Speaker 04:
Let me just back up a little bit.

[00:08:43] Speaker 04:
And you had a colloquy with Judge McHugh that related to jurisdiction.

[00:08:50] Speaker 04:
Relatedly, we have the district court saying that denying the motion based on law of the case.

[00:09:00] Speaker 04:
And the question I have for you is what you would say should happen now in light of our recent decision in a case called Harris v. City Cycle Sales, which says the law of the case applies when an issue has been forfeited in district court and waived on appeal.

[00:09:23] Speaker 04:
Doesn't that undercut your law of the case argument?

[00:09:27] Speaker 02:
I'm not familiar with that decision.

[00:09:29] Speaker 02:
I'm not going to pretend that I am.

[00:09:33] Speaker 04:
It came out in August, but it does speak to your argument that forfeiture and waiver doesn't apply in law of the case.

[00:09:43] Speaker 04:
But that case, at least in that context, at least suggests maybe that's not correct.

[00:09:51] Speaker 02:
Okay, what I looked up was the Carrasco-Salazar decision, and it's an older decision, and it talks about waiver being accomplished through intent and forfeiture being neglected.

[00:10:05] Speaker 02:
And I don't think it's fair to say that the Youngs have neglected the argument that the $250 million pre-judgment asset freeze should be reduced under lieu.

[00:10:17] Speaker 02:
When we raised that issue in our first appeal... Hold on a second.

[00:10:21] Speaker 01:
Are you challenging now the prior 10th Circuit decision that determined that these issues were waived?

[00:10:30] Speaker 01:
No, I think that is the law of the case.

[00:10:33] Speaker 01:
Okay.

[00:10:35] Speaker 01:
And now you're saying Lou somehow gives you an opportunity to bring the same issues again?

[00:10:41] Speaker 02:
I am saying that this court did not decide whether or not the prejudgment asset freeze should be reduced.

[00:10:51] Speaker 02:
in light of Lou, and that the Youngs have constantly said the prejudgment asset freeze should be reduced under Lou in every motion that we've filed from before the January decision after.

[00:11:05] Speaker 01:
And so to say that we have... Well, first of all, Lou is not a subsequent decision, right?

[00:11:12] Speaker 01:
It's subsequent to the asset freeze.

[00:11:13] Speaker 01:
It's subsequent to the... Subsequent to the asset freeze, but it's not subsequent to your prior appeal, is it?

[00:11:19] Speaker 01:
Okay, so how is that a change in the law or a change in the facts when it was already available before the last time you were up here?

[00:11:31] Speaker 02:
It's not a change in the law.

[00:11:33] Speaker 02:
There hasn't been a change in the law since the last time I was up here.

[00:11:36] Speaker 01:
Okay.

[00:11:37] Speaker 02:
But I don't think that under the definitions of waiver or forfeiture

[00:11:43] Speaker 02:
that it would be correct to leave in place a plainly erroneous $250 million asset freeze given that we're all, as lawyers and judges, required to follow the law set forth by the United States Supreme Court and Congress in the NDAA.

[00:12:01] Speaker 03:
Well, isn't disgorgement here different than making investors whole?

[00:12:05] Speaker 03:
Aren't those two different theories of recovery?

[00:12:08] Speaker 02:
For sure.

[00:12:08] Speaker 02:
And the investors aren't parties to this case.

[00:12:10] Speaker 02:
This is the commission.

[00:12:11] Speaker 02:
And the commission has two remedies.

[00:12:13] Speaker 02:
Disgorgement, which we submit is equitable disgorgement, which is not reached in Camargo, or penalties.

[00:12:19] Speaker 02:
And so whether or not the investors get whole is not a subject of this case.

[00:12:25] Speaker 02:
Commission is limited in its remedies to equitable discouragement or penalties.

[00:12:30] Speaker 02:
And so the investors, you don't know this, it's not in the record and it's not part of the appeal, but I think it's interesting, are pursuing all of their losses from the prime broker in separate litigation.

[00:12:44] Speaker 02:
The investors are not suing my clients or Mediatrix.

[00:12:54] Speaker 02:
So as far as jurisdiction, I understand where this court is coming from, but I would ask you to look at the fact of, is it fair to the youngs when the order that was appealed previously was denied without prejudice, and when there has never been a merits decision from this court or from the court below applying Lew?

[00:13:13] Speaker 02:
And I think we are entitled.

[00:13:15] Speaker 01:
What does Lew have to, I mean, Lew is dealing with

[00:13:19] Speaker 01:
Discouragement liability and it's not dealing with a preliminary injunction, which by the way your clients consented to, preserving assets for the benefits of the victims.

[00:13:35] Speaker 02:
What Lou has to do with it is in determining, for courts to determine an amount of a prejudgment asset freeze in a commission case.

[00:13:44] Speaker 02:
They need to look at what the commission can recover post-judgment.

[00:13:48] Speaker 01:
Well, actually, on remand in Lew, didn't they reject that theory and didn't require a hearing?

[00:13:54] Speaker 02:
They didn't require a hearing in the Ninth Circuit.

[00:13:57] Speaker 02:
And we do not believe that.

[00:13:59] Speaker 02:
And that was post-judgment, by the way.

[00:14:00] Speaker 02:
By the time it was remanded, they didn't have a post-judgment hearing right away in response to Lew.

[00:14:07] Speaker 02:
But there has to be a rule of law principled basis for setting a prejudgment asset price.

[00:14:14] Speaker 02:
And it can't be anything other than the amount that the commission can recover in disgorgement post-judgment under the way the NDAA is framed.

[00:14:26] Speaker 02:
Now you're correct that Lew did not deal with, it wasn't a prejudgment asset freeze case.

[00:14:31] Speaker 02:
The issue in Lew was what does disgorgement mean and can the commission pursue it?

[00:14:37] Speaker 02:
And the answer was the commission can pursue it and it means net gains.

[00:14:42] Speaker 02:
What we have here is a prejudgment asset freeze of $250 million when gross gains are $35 million and no evidence as to what net gains are.

[00:14:54] Speaker 02:
And we believe that this court does have jurisdiction under 1292A1 and the distinguishing features from the cases cited by the commission.

[00:15:06] Speaker 02:
Thank you.

[00:15:07] Speaker 03:
Thank you, counsel.

[00:15:08] Speaker 02:
I have 20 seconds in case something really crucial.

[00:15:11] Speaker 03:
You can use it if you want.

[00:15:21] Speaker 00:
May it please the court, Morgan Brady Lyons for the commission.

[00:15:24] Speaker 00:
The Young's attempt to appeal this decision under 1292A1 should be dismissed for lack of jurisdiction.

[00:15:31] Speaker 00:
Courts generally require that successive appeals from denials of motions to modify injunctions, as you were explaining Judge McHugh, should be separated by change in circumstances or the law.

[00:15:42] Speaker 00:
Here, there is no such change.

[00:15:44] Speaker 00:
Even if Lou somehow did...

[00:15:47] Speaker 04:
you would concede the statute doesn't say anything about change circumstances, does it?

[00:15:51] Speaker 00:
Yes, Your Honor.

[00:15:52] Speaker 00:
I would concede that.

[00:15:53] Speaker 00:
That's correct.

[00:15:54] Speaker 00:
I'm speaking about the cases that sort of impose this gloss of a change in circumstances.

[00:15:59] Speaker 04:
And we don't have an on-point case that sets that in the Tenth Circuit, do we?

[00:16:04] Speaker 00:
I'm not aware of one, Your Honor.

[00:16:06] Speaker 00:
It does seem that without that requirement for change in circumstances or the law, the language of the statute could apply for really

[00:16:16] Speaker 00:
duplicative successive appeals as it seems to make sense to require that there be some change in factor law that sort of has a nexus to the issue on appeal.

[00:16:27] Speaker 00:
I did also want to follow up Judge Matheson on your site to Harris, which I read very recently.

[00:16:35] Speaker 00:
It does have a really interesting discussion of the law of the case doctrine and how the law of the case doctrine and waiver doctrine sort of relate to each other.

[00:16:44] Speaker 00:
The 10th Circuit in Harris

[00:16:46] Speaker 00:
explained that the law of the case requirement that an issue be decided on appeal is qualified by the waiver doctrine which holds that an issue that could have been but was not raised on a previous appeal is forfeited and may not be revisited by the district court.

[00:17:01] Speaker 00:
So I think it's very applicable to this case.

[00:17:03] Speaker 04:
Although there wasn't the panel applying Kansas

[00:17:10] Speaker 04:
law of the case?

[00:17:12] Speaker 00:
They talk about sort of the general law of the case doctrine.

[00:17:15] Speaker 00:
At first, they did apply Kansas law of the case, Your Honor, and sort of factually it's not that similar to our case, but there's sort of a lengthy discussion of how the law of the case doctrine, not just in Kansas works, that I thought was very interesting and very interesting here on how waivered.

[00:17:30] Speaker 04:
If we decide we don't have jurisdiction, we

[00:17:33] Speaker 04:
wouldn't even reach law of the case, would we?

[00:17:35] Speaker 00:
I don't think so, Your Honor.

[00:17:36] Speaker 00:
I think this case could be dismissed for lack of appellate jurisdiction and that would be the end.

[00:17:40] Speaker 04:
Although the district court decided the motion, the latest motion based on law of the case, would we have jurisdiction limited just to that part of the district court's decision, whether it got it right or wrong?

[00:17:55] Speaker 00:
I'm not sure that would be

[00:17:57] Speaker 00:
Necessary, Your Honor.

[00:17:59] Speaker 00:
I think this court could do because there isn't sort of the 10th Circuit case on point directly here.

[00:18:04] Speaker 00:
It has a lot of discretion to decide it on any grounds that it wishes to.

[00:18:08] Speaker 00:
But I'm not sure that the district court deciding on law of the case doctrine would qualify as a kind of change in circumstances or law that would justify an additional successive appeal.

[00:18:21] Speaker 00:
I think the asset freeze does provide that the youngs are entitled to go back to the district court and move to modify the asset freeze and the commission is entitled to oppose that motion.

[00:18:34] Speaker 03:
But I mean just as a general matter setting aside the law of the case, permutation, a party can go back and ask the court to modify its injunction

[00:18:46] Speaker 03:
as often as it can get away with it, right?

[00:18:48] Speaker 00:
Of course, Your Honor.

[00:18:49] Speaker 00:
The 1292A1 only applies to this Court's jurisdiction over the District Court.

[00:18:54] Speaker 00:
Certainly the parties, as circumstances change with a preliminary injunction, can go back and forth as necessary to the District Court.

[00:19:06] Speaker 01:
I think the Commission filed a 28J in this matter.

[00:19:10] Speaker 01:
Is that correct?

[00:19:11] Speaker 01:
Yes, Your Honor.

[00:19:13] Speaker 01:
And I'm a little puzzled by it because it seems to be focused on the standard for granting a preliminary injunction, which seems irrelevant to us here because we have a stipulation to the preliminary injunction.

[00:19:31] Speaker 01:
What am I missing?

[00:19:32] Speaker 00:
Nothing, Your Honor.

[00:19:33] Speaker 00:
This actually was filed out of an abundance of caution and sort of reflects more of a commission policy than a concern about this particular case.

[00:19:42] Speaker 00:
We did want to make sure the court was aware of Starbucks and Chappelle in terms of extending Starbucks to commission injunctions here.

[00:19:52] Speaker 00:
But we don't think that that really controls in this case at all.

[00:19:55] Speaker 00:
It was under an abundance of caution approach.

[00:19:58] Speaker 01:
Okay, because we've got a stipulated injunction and the question is modification.

[00:20:03] Speaker 00:
Yes, Your Honor, that's correct.

[00:20:07] Speaker 03:
You know, they cite to the Fifth Circuit case and you have a prejudgment asset freeze.

[00:20:15] Speaker 03:
The targets of your investigation don't have the financial resources to mount an effective defense, although they're not presumed innocent like in the criminal context.

[00:20:28] Speaker 03:
you know, the commission still has to, you know, make a showing, did make a showing in getting its initial freeze order.

[00:20:37] Speaker 03:
But doesn't that need to be balanced with the defendant's right to mount a reasonable defense?

[00:20:43] Speaker 03:
And did the district court just kind of blow by that?

[00:20:48] Speaker 03:
You know, found, well, they're tainted assets that should go to victims.

[00:20:53] Speaker 03:
And then, you know, there we are.

[00:20:56] Speaker 03:
And at some point maybe

[00:20:58] Speaker 03:
because of discovery or other factors, maybe parties like the Young can show, well, we're situated differently than the primary bad guys, however you want to characterize it.

[00:21:09] Speaker 03:
But the district court never really did a compare and contrast or grasp or grapple with the difference in evidence of liability.

[00:21:20] Speaker 03:
And that's if you read the Fifth Circuit case, it's like, you know, we're

[00:21:24] Speaker 03:
It's an equitable balancing.

[00:21:27] Speaker 03:
Did that really happen here?

[00:21:29] Speaker 00:
I think, Your Honor, the district court has had this case for a while, but we are still in very early stages of this case because of the parallel criminal proceedings.

[00:21:38] Speaker 00:
So there really hasn't been much development in terms of viability.

[00:21:42] Speaker 00:
The district court certainly would have the discretion as the case progresses to determine that assets should be released if the youngs were to show to the district court that they were situated differently and it were necessary.

[00:21:56] Speaker 00:
What this court said in the previous appeal is sort of the question of whether to unfreeze assets.

[00:22:01] Speaker 00:
trusted to the discretion of the district court.

[00:22:04] Speaker 00:
I think the district court here weighed various factors, and the case as the end points to... Is our standard of review an abuse of discretion?

[00:22:12] Speaker 00:
Yes.

[00:22:12] Speaker 03:
We're clear on the factual findings.

[00:22:15] Speaker 01:
But we do know they're a little different because of what they pled guilty to, right, or he pled guilty to.

[00:22:21] Speaker 01:
Mrs. Young hasn't pled guilty to anything.

[00:22:25] Speaker 00:
Yes, Your Honor.

[00:22:25] Speaker 01:
Or been indicted for anything.

[00:22:27] Speaker 00:
No, Mrs. Young is here as a relief defendant, Your Honor, for sure.

[00:22:30] Speaker 00:
And in the criminal case, yes, they pled guilty to, Mr. Young pled guilty to lying to the commission and that the other defendants were charged

[00:22:40] Speaker 00:
much more extensively with the fraud.

[00:22:42] Speaker 01:
Well, so, I mean, in terms of balancing, there is a difference that we know already.

[00:22:48] Speaker 00:
That may be correct, Your Honor.

[00:22:49] Speaker 00:
I think some of that hasn't come out in the district court yet, but the district court can look at what happens in the criminal case.

[00:22:55] Speaker 00:
And that may be something the court does take into effect when future requests are made.

[00:23:02] Speaker 00:
Here, I think the district courts are found reasonably that the interest of the investors in having their funds returned to them still out was the stronger force motivating their decision, and the youngs here have not pointed to any assets that don't come from the Mediatrix fraud that they asked to use for counsel.

[00:23:24] Speaker 00:
But the freeze has been modified during the case.

[00:23:28] Speaker 00:
The defendants were allowed to seek employment and to use money from their employment for living expenses and council fees.

[00:23:36] Speaker 00:
And as they've identified assets that were not tainted by the fraud or don't come from Mediatrix, the commission generally agreed to the release of those assets as the case has gone on.

[00:23:47] Speaker 03:
Ms.

[00:23:47] Speaker 03:
Ashmore challenged the basis for the district court's finding of

[00:23:54] Speaker 03:
I guess that's the eight million dollar figure sticks in my mind that she claims there's really no evidence for the courts to make that determination.

[00:24:05] Speaker 03:
What's your rebuttal for that?

[00:24:07] Speaker 00:
I think, Your Honor, what's happened so far in this case is we are still at a preliminary phase.

[00:24:12] Speaker 00:
We're only talking about the asset freeze.

[00:24:14] Speaker 00:
So there has been no finding as to disgorgement against Mr. Young.

[00:24:19] Speaker 00:
a division of disgorgement between Mr. Young and the other defendants.

[00:24:23] Speaker 00:
So what the district court really looked at was the total number of frozen assets and the likely ultimate disgorgement award in this case.

[00:24:30] Speaker 00:
There really hasn't been any kind of extensive record about dividing up the amounts or setting disgorgement.

[00:24:37] Speaker 00:
And certainly where we are in this case procedurally, the district court should have latitude to set an asset freeze.

[00:24:45] Speaker 03:
How long has the case been filed?

[00:24:47] Speaker 00:
2019, Your Honor.

[00:24:49] Speaker 03:
There's been no depositions, document discovery.

[00:24:53] Speaker 00:
There were numerous delays in the criminal case against Mr. Stewart and Sewell.

[00:25:00] Speaker 00:
Is the civil case on hold because of the criminal case?

[00:25:03] Speaker 00:
It was stated as to Mr. Stewart and Sewell and really sort of effectively was stated generally because it has not proceeded.

[00:25:11] Speaker 00:
While that happens, they have now been convicted and should be sentenced soon, so we hope things will begin moving quickly.

[00:25:18] Speaker 03:
But you know, Mr. Young's case has been really held hostage to those other proceedings, which really kind of exacerbates the problem that they have in trying to defend themselves in a different context

[00:25:32] Speaker 03:
versus the primary targets of your investigation.

[00:25:38] Speaker 00:
We understand, Your Honor.

[00:25:39] Speaker 00:
And yes, the district court sort of has the discretion to take all of that into account and make modifications to the freeze as necessary.

[00:25:47] Speaker 03:
As does the commission, right?

[00:25:49] Speaker 03:
You have some discretion on a stipulated release of funds if you wanted to.

[00:25:56] Speaker 03:
That's true, Your Honor.

[00:25:59] Speaker 04:
If the youngs could get passed,

[00:26:01] Speaker 04:
the jurisdiction and law of the case arguments and we get to merits here.

[00:26:08] Speaker 04:
Shouldn't the court consider in terms of whether there should be some modification of the order, whether the movement seeking to unfreeze assets is doing so to pay attorney fees?

[00:26:27] Speaker 04:
Should that be part of the standard

[00:26:30] Speaker 04:
in making that decision?

[00:26:32] Speaker 00:
I think that the Youngs could not point to a case in the 10th Circuit that imposed that standard on the district court.

[00:26:38] Speaker 00:
Certainly the district court has broad discretion, and that may be one of the factors the court would consider.

[00:26:45] Speaker 00:
But I think the Youngs have not pointed to a case that would say the court under these circumstances here would abuse its discretion in not deciding to release those funds.

[00:26:55] Speaker 04:
So they haven't pointed to a 10th Circuit case?

[00:27:00] Speaker 00:
The cases they have pointed to, Your Honor, we think are generally distinguishable.

[00:27:05] Speaker 04:
How do other courts deal with that question?

[00:27:09] Speaker 04:
Is that something that they're required to consider?

[00:27:13] Speaker 00:
I'm not aware of cases saying exactly laying out the factors a district court must consider.

[00:27:18] Speaker 00:
Certainly, there are decisions where courts have considered the availability of counsel.

[00:27:24] Speaker 00:
And here, I think the fact that the young czar represented has been taken into account by the district court currently represented.

[00:27:30] Speaker 00:
But it may be something that is disreported in its discretion.

[00:27:33] Speaker 04:
Well, an ability to pay.

[00:27:36] Speaker 00:
That is something a disreport could consider, Your Honor, but again, does not necessarily outweigh all the other factors that would be.

[00:27:44] Speaker 04:
I had a question about Mrs. Young's status as a relief defendant.

[00:27:50] Speaker 04:
In the first appeal, one of the arguments was that the motion, Don Freish, be granted

[00:28:00] Speaker 04:
because of the status as a relief defendant.

[00:28:05] Speaker 04:
And the decision didn't explicitly say that issue was waived.

[00:28:14] Speaker 04:
Was it waived?

[00:28:16] Speaker 00:
I believe that it was, Your Honor, I think my reading of the decision was really that the youngs had sort of failed to preserve any of their issues on appeal and that only the Stewart's and Sewell's issues as to release a fees for counsel and a hearing were preserved.

[00:28:35] Speaker 00:
And I think the court only remanded on the question of whether the district court should hold a hearing in the first instance.

[00:28:41] Speaker 00:
So my understanding is all of those issues were

[00:28:44] Speaker 00:
in fact waived by the first decision in this court.

[00:28:55] Speaker 00:
If there are no other questions, that's for everybody.

[00:28:58] Speaker 03:
Thank you, counsel, your excuse.

[00:29:04] Speaker 03:
Could you give Ms.

[00:29:04] Speaker 03:
Ashmore one minute?

[00:29:09] Speaker 02:
I'm not gonna take much time.

[00:29:11] Speaker 02:
If you decide this on the basis of jurisdiction, so be it.

[00:29:15] Speaker 02:
But I would, I do think it's important to know that if there was not binding tense workup precedent limiting 1292A1 in the manner that you're imposing right now, and given that since Lew was decided and the NDAA was passed, the Youngs have shown an intent to have the court apply

[00:29:36] Speaker 02:
the limits on disgorgement set forth in lieu and not challenged in the NDAA.

[00:29:42] Speaker 02:
And certainly I don't think it's fair to say that they've forfeited their rights to have these issues heard when forfeiture comes about through neglect.

[00:29:50] Speaker 02:
And if anything, you're complaining they haven't neglected.

[00:29:53] Speaker 02:
And so this is not a case where their rights should be forfeited given the clear state of lieu in the NDAA and no basis for a prejudgment asset freeze in excess

[00:30:05] Speaker 02:
eight times in excess of the potential maximum post-judgment remedy.

[00:30:09] Speaker 03:
Thank you.