[00:00:37] Speaker 05:
brought in the bankruptcy court.

[00:00:40] Speaker 04:
It was not just standing, because the BAP went on to say you'd lose on the merits if they get to the merits.

[00:00:48] Speaker 05:
That's correct, Your Honor.

[00:00:49] Speaker 05:
They did do an alternative fighting on 12b6 of theta to state a claim for relief, and I will get to that, but that you are correct that they ruled that.

[00:00:57] Speaker 05:
We believe that was an improper use of the so-called right-for-any-reason doctrine, because, in fact,

[00:01:06] Speaker 05:
the trial judge had not granted the motion for 12b-6.

[00:01:11] Speaker 04:
That happens all the time in our court.

[00:01:13] Speaker 04:
I mean, a district judge may grant a summary judgment on one ground, and we lined up granting as affirming, but on an alternative ground.

[00:01:23] Speaker 04:
And so I know your breeze kept talking about reversing the bankruptcy court.

[00:01:28] Speaker 04:
I don't see it that way at all.

[00:01:30] Speaker 04:
And we never term it that.

[00:01:31] Speaker 04:
So I think all of this is on the table.

[00:01:34] Speaker 05:
Well, I agree with you that it's on the table.

[00:01:38] Speaker 05:
applies when in fact you're going to reverse.

[00:02:13] Speaker 05:
stated by the lower court.

[00:02:15] Speaker 04:
No, there are plenty of cases.

[00:02:18] Speaker 04:
We've just said this issue is easier.

[00:02:19] Speaker 04:
We're doing it this way.

[00:02:21] Speaker 04:
We don't have to reverse.

[00:02:22] Speaker 04:
We never use that term, but we don't have to discuss the ground relied upon by the district court or bankruptcy court at all.

[00:02:30] Speaker 05:
The other ground we have for why that was improper is that it in fact expanded the relief.

[00:02:36] Speaker 05:
And that was difficult because both ways

[00:02:59] Speaker 05:
court, where this matter started, because the Delaware standards for standing would be different than the Article III standards.

[00:03:08] Speaker 05:
And so there's been no judgment on the merits.

[00:03:10] Speaker 05:
We also refact that with respect to standing, that's not a decision on a merits.

[00:03:16] Speaker 05:
It's a decision, there's no jurisdiction.

[00:03:18] Speaker 04:
In a context where the standing grounds is the failure to suffer an injury, in fact, and the lack of

[00:03:33] Speaker 04:
I think preclude any other court from picking up the case and trying to run with it.

[00:03:38] Speaker 05:
Well, there's a couple of things.

[00:03:39] Speaker 05:
One, you may be right, but that's a factual determination that should be made, at least with respect to a summary judgment motion.

[00:03:45] Speaker 05:
It was here, there was no Judiciary hearing.

[00:03:47] Speaker ?:
It was all those things were done on an emergency basis.

[00:03:50] Speaker 04:
So there was no trial, there was no... What I found most interesting about

[00:03:58] Speaker 04:
are all of the kind you're articulating now, which we can talk about.

[00:04:02] Speaker 04:
But there's no argument that I found in your briefs that seriously contested the factual conclusions of the bankruptcy court, which is that your alternative theory that if allowed to proceed, the reorganization plan proposed by the debtor would be accepted or that negotiate something better.

[00:04:23] Speaker 04:
The bankruptcy court was very blunt in rejecting

[00:04:30] Speaker 04:
And I see arguments saying, well, there was other evidence they should have considered.

[00:04:36] Speaker 04:
But what I don't see is any argument that says there's evidence that should be considered.

[00:04:57] Speaker 04:
determination.

[00:04:58] Speaker 05:
We do make that argument in our briefs, Your Honor.

[00:05:11] Speaker 05:
Where?

[00:05:14] Speaker 05:
We have a section heading called clearly erroneous.

[00:05:18] Speaker 05:
And we assert that it was clearly erroneous, because these findings were made without an evidentiary hearing, because on an emergency basis.

[00:05:29] Speaker 05:
Summary judgment is granted all the time, especially in this district, without an evidentiary hearing.

[00:05:34] Speaker 05:
But based on declarations, Your Honor.

[00:06:01] Speaker 04:
of evidence so clearly erroneous?

[00:06:04] Speaker 05:
Yes, I agree with that, Your Honor.

[00:06:07] Speaker 04:
But there, and here's why I think there may be a nuance of difference, you're focusing on the fact that

[00:06:50] Speaker 05:
Yes, I think we do argue that, in fact, we satisfied that at the pleading stage, not to say we couldn't, we might lose later, but at the pleading stage we pled the breach of the agreement, the fact that we had an injury, fair traceability, we argued all of, none of this, everything in this case was going

[00:07:17] Speaker 05:
predator.

[00:07:18] Speaker 05:
Everything was going smoothly in the case.

[00:07:21] Speaker 05:
Things needed to be negotiated.

[00:07:22] Speaker 05:
It wasn't.

[00:07:23] Speaker 05:
And then on November 18th, it all happened on November 18th, the breach of the contract

[00:07:52] Speaker 04:
That's a tough link to have in the chain vis-à-vis proximate causation, especially when the judge says that the offer that you claim was tainted didn't make any difference.

[00:08:10] Speaker 04:
I agree.

[00:08:11] Speaker 04:
So don't you need to, under Iqbal, to plead sufficient facts to establish a plausible inference that you really can show this chain

[00:08:22] Speaker 04:
the judicial officer saying

[00:08:49] Speaker 05:
creditors committee said the reason we're supporting this is because of this we cannot trust the debtor to review this new offer that we've received which was the breach so David they the creditors committee admit that that's why they're joining the bankruptcy judge in her decision says the reason I

[00:09:21] Speaker 05:
none of that.

[00:09:23] Speaker 05:
What happened?

[00:09:24] Speaker 05:
They breached the contract.

[00:09:25] Speaker 05:
They shared our confidential information.

[00:09:27] Speaker 05:
They made a hostile bid for the company.

[00:09:30] Speaker 04:
You can make that argument that the bankruptcy judge noted several other things, which reflected why she had lost trust and confidence, why she thought the creditors generally had lost trust and confidence, and why the plan put forth by the debtor wasn't going to be approved anyway.

[00:09:58] Speaker 04:
were proximately caused.

[00:10:01] Speaker 04:
And that's the problem raised by Judge Collins, because you have to produce allegations that plausibly lead to the conclusion that you're entitled to the relief.

[00:10:11] Speaker 04:
And with the bankruptcy court confirmed by BAP having concluded that the causation was broken, how is the pleading that you've offered up going to satisfy the requirements of ICCPOL?

[00:10:25] Speaker 05:
Well, first I point out that the

[00:10:48] Speaker 04:
quote, undeniable that both the creditors and the bankruptcy court had lost trust and confidence in debtor management.

[00:10:57] Speaker 04:
She also said the plan was flawed for being infeasible and violating the absolute priority rule.

[00:11:03] Speaker 04:
She gave lots of reasons for saying that causation chain was broken.

[00:11:08] Speaker 04:
And I'll go back to the question I

[00:11:49] Speaker 04:
connection to any of those.

[00:12:30] Speaker 04:
have to give approval.

[00:12:32] Speaker 04:
And she made it very clear, no way this debtor's plan is going to be approved.

[00:12:39] Speaker 04:
So where's the cause I

[00:13:03] Speaker 05:
information.

[00:13:04] Speaker 05:
That's our, that's our argument.

[00:13:06] Speaker 05:
We don't even need to prove it at this stage.

[00:13:08] Speaker 04:
I think we have to, so… You have to give plausible allegations, and if the bankruptcy judge is saying, based on my role here, it wasn't going to happen, so there's no causation, and there's no injury in fact, because it wasn't going to happen because of the alleged breach of the NDA, then where are the plausible allegations that let us get past that?

[00:13:38] Speaker 04:
judgements all the time without any hearing whatsoever, let alone an evidentiary hearing, so.

[00:13:44] Speaker 04:
Was supporting declarations, Your Honor.

[00:13:47] Speaker 05:
Was some supporting evidence.

[00:13:48] Speaker 05:
There was nothing here.

[00:13:49] Speaker ?:
She made her decision based on her recollections of what happened, which we dispute, by the way.

[00:13:55] Speaker ?:
Where?

[00:13:56] Speaker 04:
I asked you earlier, where in the opening brief is there a

[00:14:07] Speaker 04:
Maybe your colleague can tell you what I should look at, but I don't see it.

[00:14:18] Speaker 04:
So, wait a minute, of the reply.

[00:14:20] Speaker 04:
Yes, Rob.

[00:14:22] Speaker 04:
And so you're first going to really contest the finding in the reply brief.

[00:14:28] Speaker 04:
You think that's sufficient.

[00:15:03] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:15:04] Speaker 01:
My name is Julie Cooker with DLA Piper on behalf of Epilese this morning, Argonaut Manufacturing Services, Inc., and the Telegraph Hill Partners entities.

[00:15:14] Speaker 01:
The bankruptcy appellate panel and the bankruptcy court both correctly held that dismissal with prejudice was appropriate in this case.

[00:15:22] Speaker 01:
This case is unique in the sense that there is a

[00:15:38] Speaker 01:
The bankruptcy overlay is perhaps unusual in that sense, but it is critical and dispositive in this particular case.

[00:15:44] Speaker 01:
In this specific context, GXP lacks Article 3 standing.

[00:16:08] Speaker 04:
of a potential sale.

[00:16:30] Speaker 04:
They were out a big pile of money at the end.

[00:16:32] Speaker 04:
That's what they claim.

[00:16:33] Speaker 04:
If the legal theory is correct, of course it's Article III standing.

[00:16:37] Speaker 04:
I just, this, if the question is whether this claim is viable, how this got put into a jurisdictional book, I can't fathom.

[00:16:46] Speaker 01:
I think, Your Honor, I appreciate those sentiments.

[00:16:49] Speaker 01:
With respect to the breach of contract claim, and I think this was raised a bit at the BAP, you know, how can

[00:17:01] Speaker 01:
The elements of the cause of action in large part track the standing analysis.

[00:17:05] Speaker 01:
But because jurisdiction is a threshold issue, the court did appropriately look to whether or not... This is like looking at the tort claim.

[00:17:19] Speaker 04:
That's what this looks like to me.

[00:17:21] Speaker 04:
So then procedurally, it got all bollocksed up, because all of a sudden, we're doing 12-by-1.

[00:17:28] Speaker 04:
We were allowed to do factual inquiry without discovery.

[00:17:32] Speaker 04:
It seemed procedurally to go off the rails.

[00:17:36] Speaker 01:
Well, with respect to the injury and facts piece, Your Honor, in this particular case with the bankruptcy proceeding and the bankruptcy overlay, the Court appropriately looked to whether or not there was a legally protected interest

[00:18:07] Speaker 04:
will thereby go back to the very beginning and say, aha, this claim had no injury in fact, so we dismiss for lack of standard.

[00:18:13] Speaker 04:
Once the case has gotten started, we've got jurisdiction and can adjudicate it, even if the end result is a finding that there was no injury in fact, no cause.

[00:18:25] Speaker 04:
Here, the complication, I think, came out of the fact that when the bankruptcy proceeding, when the debtor filed Chapter 11,

[00:18:35] Speaker 04:
All these claims were potentially on the table.

[00:18:38] Speaker 04:
Now it may be that the adversary proceeding doesn't get filed until after the debtor's assets have been otherwise sold off.

[00:18:49] Speaker 04:
But the bankruptcy proceeding is still going on and nobody questions the bankruptcy court's authority over the bankruptcy proceeding.

[00:18:56] Speaker 04:
And I'm wondering, and I've looked hard, my law clerks, but we don't find much guidance on this.

[00:19:01] Speaker 04:
This is an odd situation.

[00:19:03] Speaker 04:
But why are we looking at a point in time late in the bankruptcy proceeding, when in fact, if these allegations have been brought before the debtor was actually broken up?

[00:19:30] Speaker 04:
I can understand in retrospect how we got off under the standing track, but at this point in time, is there any real reason for us to continue to view it through that lens?

[00:19:42] Speaker 04:
Why don't we just deal with the factual determinations made by the bankruptcy court and by the BAP?

[00:19:50] Speaker 01:
I think if your honors were to determine that the 12b1 jurisdictional analysis was improper or unnecessary, certainly the 12b6 analysis.

[00:20:08] Speaker 01:
proceeding to the merits, but if for the same reasons that the BAT determined that injury in fact and causation were lacking, that equally applies to the 12b6 analysis.

[00:20:18] Speaker 01:
So if in this instance, because Your Honors were to find that it was so intertwined with the merits or standing existed, the 12b6 analysis would get us to the same conclusion and dismissal with prejudice would be appropriate for the same.

[00:20:50] Speaker 01:
of the case and the bankruptcy appellate panel and the bankruptcy court both correctly applied the law of the case doctrine to this particular circumstance.

[00:20:59] Speaker 01:
There's case law that suggests, albeit outside of the Ninth Circuit, that the law of the case doctrine applies equally to bankruptcy

[00:21:18] Speaker 01:
different than preclusion, but it does sort of, generally speaking, the courts are prevented from re-litigating issues that were... Matters come to us while the case in the lower court sense you're talking about drops out.

[00:21:34] Speaker 04:
Because you're talking about lower court law, the case where the decision made earlier in the litigation at that level is not going to be revisited.

[00:21:54] Speaker 04:
that your argument really wasn't

[00:22:22] Speaker 01:
And your question now, apologies, Your Honor.

[00:22:23] Speaker 01:
So yeah, so with respect to the law of the case, the bankruptcy court correctly used her discretion to apply the law of the case.

[00:22:30] Speaker 01:
Here, when Your Honors are considering the 12b6 arguments, and I believe the questions to my colleague opponent touched on this, but there has been no showing that the findings of the appointment order were clearly erroneous.

[00:22:45] Speaker 01:
And so because the debtor never appealed the decision, even though it had the opportunity to do so,

[00:23:09] Speaker 02:
overlap, but it's not clear.

[00:23:13] Speaker 02:
There isn't much reasoning.

[00:23:14] Speaker 02:
A lot of it's just referencing to its earlier Article III standing analysis.

[00:23:19] Speaker 02:
So is it maybe a better approach to send it back to the BAP and to take a look at it, look at the 12b6 dismissal more carefully and set out the reasons without just referencing its earlier standing analysis?

[00:23:35] Speaker 01:
I don't think that would be necessary in this case, Your Honor.

[00:23:37] Speaker 01:
I think there is sufficient

[00:23:43] Speaker 01:
to show injury in fact equally applies to the 12b6 elements and so for that reason I think there is actually sufficient discussion from the BAP already and so I don't think remand would be would be necessary.

[00:24:34] Speaker 01:
they had the right to withhold information from the creditors, withhold information from the court, none of that establishes a legally cognizable theory.

[00:24:44] Speaker 01:
And so it is unusual in the sense that we're not looking at was there a contract, was the NDA breached by disclosure of confidential information.

[00:24:51] Speaker 01:
So it is slightly unusual and nuanced in that respect, but I do think that the analysis is well-developed from the bankruptcy appellate panel on the 12b6 elements.

[00:25:08] Speaker 01:
One additional point that I'd like to raise which was also discussed in the debtor's reply brief is this issue that or their contention that breach of contract automatically

[00:25:31] Speaker 01:
decision and the Dinnerstein decision from the Seventh Circuit.

[00:25:36] Speaker 01:
But as a point of clarification, Dinnerstein in the Seventh Circuit actually rejected the very argument that the debtor is putting forward here, that a breach of contract automatically establishes injury and fact.

[00:25:48] Speaker 01:
And the Dinnerstein decision, I believe, is instructive on that point.

[00:25:51] Speaker 01:
It interprets spokio, trans union, and full to both

[00:26:28] Speaker 01:
legally cognizable interest.

[00:26:30] Speaker 01:
Because it's the merits.

[00:26:32] Speaker 04:
It's the problem in this case.

[00:26:34] Speaker 04:
It's a merits claim that this contract and tort theory is just too novel a theory.

[00:26:41] Speaker 04:
But that's a claim that's a substantive issue of contractor tort law and their causation requirements.

[00:26:50] Speaker 04:
But it certainly pleads

[00:27:09] Speaker 04:
see the jurisdictional wrap around this.

[00:27:11] Speaker 01:
Understood, Your Honor.

[00:27:12] Speaker 01:
And if that is the opinion of this Court, then the 1236 analysis, as we just discussed, would preclude GXP from asserting these same claims on the merits.

[00:27:24] Speaker 04:
As I mentioned, I've been trying to research, didn't find anything.

[00:27:27] Speaker 04:
The law clerks are veteran.

[00:27:28] Speaker 04:
They didn't find anything.

[00:27:30] Speaker 04:
You've been researching it probably more than we have.

[00:27:34] Speaker 04:
Have you encountered a case where dismissal

[00:27:53] Speaker 04:
I didn't find anything.

[00:27:54] Speaker 04:
It's a novel situation.

[00:27:55] Speaker 04:
And again, I understand why it got directed that way.

[00:27:59] Speaker 04:
But the notion that preclusion as a result of prior adjudication, which is the only reason why the allegations of plaintiff wouldn't have standing, the injury and so forth.

[00:28:11] Speaker 04:
But preclusion leads to dismissal based on lack of standing.

[00:28:15] Speaker 04:
I didn't find anything like that, have you?

[00:28:18] Speaker 01:
I have not – as I stand here right now, Your Honor, I cannot think of a case in that specific procedural context.

[00:28:24] Speaker 01:
No.

[00:28:25] Speaker 04:
So do you really want us to be the first, or would you rather have us go to the merits?

[00:28:30] Speaker 01:
I'd be happy to submit additional – I actually have not sort of looked specifically into that specific procedural context, but I do think that proceeding to the merits would be appropriate in this case because these same elements and these same deficiencies

[00:28:49] Speaker 01:
That would be an appropriate sort of step forward for this court to proceed to the merits on the 12b6 failure to state a claim grounds.

[00:29:03] Speaker 01:
I see I'm getting low on time, so I just wanted to touch briefly on the, there's a point in the reply brief that raises the stern objection that there

[00:29:17] Speaker 01:
raise the stern objection that they are entitled to an Article 3.

[00:29:45] Speaker 01:
questions.

[00:29:46] Speaker 01:
I would just respectfully request that this court affirm the bankruptcy

[00:30:19] Speaker 03:
reflected in opposing counsel's argument and was also discussed in both the BAP and the bankruptcy court order, and that is that we somehow made this allegation in the complaint that that first plan, as we termed it with capital F, capital P, would have been confirmed.

[00:30:35] Speaker 03:
We never made that claim.

[00:30:36] Speaker 03:
The only claim we made, and this relates to the theory of causation too, is that we were in the process of an

[00:31:04] Speaker 03:
Well, the way I read the bankruptcy court's order, Your Honor, was that I don't recall seeing specific findings saying, had you continued to negotiate with the OCC, you never would have confirmed a plan.

[00:31:15] Speaker 03:
I know she said the plan you submitted was not confirmable, but we never made that claim.

[00:31:19] Speaker 03:
All we said is we were negotiating with them.

[00:31:21] Speaker 04:
She said that she had lost confidence, that the creditors generally had lost confidence, that it was too late for you to have the exclusive opportunity to offer a plan.

[00:31:42] Speaker 04:
caught by a defendant's reported breach.

[00:31:45] Speaker 04:
And the reason was you weren't going to emerge with something better.

[00:31:49] Speaker 04:
The bankruptcy court was very clear in saying the creditors at that point wanted cash because the company was in such distress that it couldn't last much longer.

[00:31:59] Speaker 04:
And so ultimately the sale was not contested, the appointment of an examiner was not contested.

[00:32:08] Speaker 04:
It strikes me as

[00:32:18] Speaker 04:
be palatable to the bankruptcy court or to the creditor.

[00:32:22] Speaker 04:
And let me get to the question that I posed earlier.

[00:32:24] Speaker 04:
You referred me to page 20 of the reply brief, which is kind of late to start raising issues in terms of where the bankruptcy court's findings are disputed.

[00:32:33] Speaker 04:
And I get to page 20, and basically I'm referred to an Appendix A, which lists disputed facts.

[00:32:48] Speaker 04:
And I suspect that your district, as most of the other districts I've seen, requires parties to submit disputed facts and so forth.

[00:32:56] Speaker 04:
Listing something as disputed doesn't fend off summary judgment, doesn't fend off a determination that an argument's precluded.

[00:33:03] Speaker 04:
And so I've got the same problem I had at the very beginning of your colleague's argument, which I don't see any serious dispute here, that puts at issue the Bankruptcy Court's factual determination.

[00:33:35] Speaker 03:
appointment order are true or not.

[00:33:38] Speaker 03:
We disagree with those findings however we allege in the complaint our allegations state that this appointment order never would have been entered but for the defendant's submission of the

[00:34:10] Speaker 03:
Causes the official creditors committee by their own admission to switch their position and now support an emergency motion for the trustee The bankruptcy court states on the MET record.

[00:34:21] Speaker 03:
She is now inclined to support appointing a trustee Because the creditors committee changed their position She then after a couple hearings enters the appointment order in response to the motion to appoint a trustee She never prior to the submission of the hostile bid

[00:34:45] Speaker 03:
a confirmable plan.

[00:34:47] Speaker 03:
They're engaged.

[00:35:20] Speaker 04:
but i haven't heard it yet.

[00:35:21] Speaker 03:
I'm sorry your honor, I think I misunderstood the question, but the injury would have, so what we are alleging in the complaint is that those negotiations would have culminated in the confirmation of the plan that would have allowed the debtor to retain control of its business and sell it at a reasonable market price, which we contend in the complaint about twenty million dollars.

[00:35:41] Speaker 04:
But that chain of causations is extraordinarily speculative, and it involves

[00:36:04] Speaker 04:
Well, one answer to your Honor's question could be that maybe we need to amend

[00:36:26] Speaker 03:
haven't discussed yet is why did the bankruptcy court say dismissed with prejudice for lack of standing no leave to a man that's generally disfavored in the Ninth Circuit.

[00:36:35] Speaker 04:
I know there are some exceptions but in general they're pretty hard to meet.

[00:36:42] Speaker 04:
on appeal, so I'm not sure why the bankruptcy court could assume that, yeah, you could amend the complaint in a way that would be successful.

[00:36:50] Speaker 04:
But why should we believe that you could?

[00:36:51] Speaker 04:
Because you haven't told us what the amendment would be that would be successful.

[00:36:55] Speaker 03:
I think the amendment, Your Honor, would simply be better articulating our causation theory.

[00:37:01] Speaker 03:
I think the causation theory is in the complaint right now.

[00:37:03] Speaker 03:
Articulate it right now.

[00:37:04] Speaker 03:
We thought we heard it.

[00:37:06] Speaker 04:
It didn't make the connection it needs to make.

[00:37:09] Speaker 04:
Because you've got to get past

[00:37:30] Speaker 04:
Attachment a the appendix a these are facts we dispute but not actually giving us anything that offers serious dispute you would need to plead a plausible claim that leads to the 20 million dollars or whatever pot of gold at the end and

[00:38:04] Speaker 03:
or how those hypothetical negotiations with the OCC would have gone, and the details of that and how it would have resulted.

[00:38:31] Speaker 03:
simply wouldn't that's your obligation what makes that plausible in the face of what the bankruptcy court in the back of said what makes it plausible your honor is that the bankruptcy court never made any findings remotely close to this before the hostile bid was entered and before they defendants breach the contract and so you're asking us to assume

[00:39:02] Speaker 04:
including when the principal of your client came to know about it, including whether the debtor actually could fairly enter into this given its duty of transparency.

[00:39:12] Speaker 04:
Was it allowed to hold back information from the creditors?

[00:39:15] Speaker 04:
I mean, there are just so many questions here that you have to overcome, and you've had the opportunity in your briefing to the BAP where it wasn't taken up.

[00:39:24] Speaker 04:
You've had your opportunity in the briefing to us where it hasn't taken up.

[00:39:27] Speaker 04:
So why exactly are we supposed to say, well, we'll give you still another shot at offering up an amendment that

[00:40:52] Speaker 04:
waived all that because you went straight to the BAP and bypassed your option to carry out your reservation.

[00:41:00] Speaker 04:
Why isn't that dispositive of your Stern objection?

[00:41:03] Speaker 03:
Well, Your Honor, I see a difference between entering a final order and appealing an order.

[00:41:09] Speaker 03:
We did elect to have the order entered by the bankruptcy court heard on appeal by the BAP, but that doesn't change the fact that only the district court, per our Stern objection, could enter a final order.

[00:41:42] Speaker 04:
judgment, but you could have accomplished your Stern objection by then appealing to the district court, telling the district court that under Stern you must, even though it's labeled a judgment, you must treat it as a report and recommendation, because that's essentially what Stern says.

[00:42:00] Speaker 04:
And now give me my de novo judgment in the district court, but you let that go, you went to the PAP instead.

[00:42:07] Speaker 03:
So, um, and I know I'm out of time, but if I could briefly respond, we're asking questions.

[00:42:11] Speaker 03:
Oh, yeah.

[00:42:12] Speaker 03:
Thank you.

[00:42:12] Speaker 03:
I appreciate that.

[00:42:13] Speaker 03:
Um, I just took to clarify what your honors question here.

[00:42:17] Speaker 03:
Are you saying that, um, we could have gone to the district court and say, yeah, we're appealing to you, but really what we're doing is asking you not to enter a final judgment, sort of, uh, twisting the procedure a little bit.

[00:42:52] Speaker 03:
yeah you're on right now again we're getting into some of the nuances of stern here i believe that the difference between appeal and entry was significant entry of judgment was significant enough that by going to the back appealing to the back we weren't leaving

[00:43:25] Speaker 04:
three tribunal was handed to you as of right.

[00:43:30] Speaker 02:
Presumably if you prevailed in the BAP, you wouldn't be raising these stern objections today here, right?

[00:43:35] Speaker 03:
Had we prevailed in the BAP and had gone back to bankruptcy court, we would have started our stern objections if the bankruptcy court again entered.

[00:43:44] Speaker 02:
That's the problem here.

[00:43:56] Speaker 03:
yes i understand that your honor however we did raise our stern objection at the earliest possible opportunity unconditionally wasn't depending states is dependent on what happens in the bankruptcy court we didn't read it after the bankruptcy court give us a bad judge but who filed the adversary proceeding that ultimately brings us here today uh... g xd capital l c where they filed

[00:44:22] Speaker 04:
Thank you, Counsel.

[00:44:25] Speaker ?:
Thank you, Honors.