the regular rest judicata world we look at the broke loose of the fact of the breach of contract claim yes your honor that the you would look at whether the claim could have been brought under the davis analysis that we've we've discussed and so why do you think it could have been your honor the as davis noted if that claim if the condition proceeding is in control of the plaintiffs then it's incumbent upon the plaintiffs to  control that or stay the lawsuit intil they've until they've asserted the condition proceed in fact here the asarco could have done that they could have asserted  there are three paragraphs a demand letter which they asserted much later they had the opportunity to do so they had the cash to do so and it would not have been complicated and in fact similar to obtaining a right to sue that and in fact the in the record itself in the confirmation order of record seven zero zero four judge the district court concluded that there was over a billion dollars in cash in the state as a confirmation how would that work in bankruptcy the way they have to get court approval or something to do that right there would have to be a motion on twenty one day notice and it would be based on the business judgment standard so if the debtors business judgment was adequate here it would be as a circuit finds a twenty to one return so we believe that would be easily satisfied the the adversary proceeding and this lawsuit the facts were substantially or there were substantially similar facts situation in the two lawsuits and so we believe that the traditional n with respect to your statement twenty four would apply in this situation the if you look at the statement twenty four one a final judgment bars in extinguishe all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction the transaction itself if the facts are related in time space origin or motivation time the issues at play in this lawsuit were the same as the adversary they were the two thousand and two and two thousand and three delusions and faults the dissociation and all of the actions that were taken in  that formed a circle being kicked out of the partnership were premised on that in fact all discovery in this action has been premised on those actions there was no contested fact with respect to the letter that was sent by  origin the origin is the partnership agreement which was litigated in the in the original adversary proceeding the motivation the same to recover the forty nine point nine percent partnership interest in the in the circuit applied to this action with respect to the the issue of whether this court should reverse if  if this court affirms based upon the casper analysis and applies it to a course of lawsuit that would clearly result in a circuit split it would be inconsistent with prior court precedent asarco voluntarily chose brought in the court's going to apply claim preclusion in the plaintiff tried to say oh well but i as of the first lawsuit i had and exhausted my administrative process with the e e o c into the courts as well tough claim preclusion still applies because it was in your control to get that letter from the e e o c but that's a procedural mechanism all the facts there were the basis for the second case that happened when he filed the first case in davis here is on either side they're saying that the factual basis hadn't happened yet because they hadn't tendered the money for reinstatement so how do you respond to that so that the facts triggering the right to reinstatement occurred in two t two and two thousand and three when the circuit defaulted and then your interest were deluded at the they lost their partnership interest and the amount that was due or the amount that would have had to be paid under that reinstatement clause was determined in and on december ninth two thousand and three and so that all of the events giving rise to whether they proceeded with that with that claim occurred in the past but if they hadn't offered the money how could they have brought the claim well the montana had in fact denied that they had the right to this relief so montana had already intended the money how did they know that it would be rejected it would be restitution to because we've in response to the original complaint we filed a motion to dismiss and we stated very clearly that they had partnership agreement provisions under it we had filed a proof of claim against the serco with respect to the partnership agreement in their obligations that were due as a former partner up to the date of december ninth two from five hundred million dollars which was the amount they they had it at two thousand and seven when they follow the adversary up to over one billion dollars as referenced by the courts confirmation were in the case and so they they clearly had the money and they simply decided not to proceed in triggering the condition proceeding and they proceeded with their coercive claim a project to transfer is just a different theory instead state in the case and was part of the dismissed as part of the settlement be the original adversary raised the reinstatement clause exactly and b they withdrew that claim in the face of montana's motion to dismiss the claim because they had no legal right to do to assert that claim and then in the adversary after their pursuit by a sort of their theory of fraudulent transfer  the ultimate dismissal with prejudice was based on settling the fraudulent transfer lawsuit which was the coercer belief and the proof of claim in montana had reduced its proof of claim from over one hundred million dollars  by over sixty million dollars in resolution on the final day of the confirmation hearing and withdrew its objection to the a circuit plan as part of that resolution as well montana had this claim is also dealt with by virtue of the judicial stoppel theory that we have asserted in that circle certainly knew of the claim it could have squeezed it appropriately under decades of this court precedent in the coastal plains case any claim with potential had to be disclosed on schedule b the court ignored this the circuits precedent is second opinion on summary judgment a the district dealt with partially disclosed causes of action there that only lip that only were did not have adequate disclosure of the parties or all of the claims those are all of this is a chapter eleven case of course and disclosure to the creditors in the court was the was the requirement and that disclosure was never made admission to stop as an equitable doctrine it's within the discretion of the trial court whether to apply that type of equitable relief so should the standard of review just be abuse of discretion there would should not your honor there were errors of law made here in the standard that which  used by the court the court didn't apply the coastal plain standard which has been utilized by this court for years in looking at the depth of disclosure that must be made every cause of action that existed hundred million dollars in initial capital contribution and other payments later now during a time of extreme financial distress for the company in the early two thousand as it did miss the capital payments that were required under the agreement and for about five the value of about five million dollars saw its interest this valuable interest in the partnership diluted down to nothing fortunately the partnership  the right to seek reinstatement and there is no time limit on that right to seek reinstatement it is a right or an option under their contract to come back tender the funds with interest as we did in secret statement and that's exactly what we did in two thousand and eleven and that is the operative facts that led to the breach of contract suit that's before the court today tendered money during a bankruptcy pierce yes your honor this was raised just now about whether there was enough cash and whether that could have happened and let me just say a few things in answer to your honor's question first of all asarco leading up to and then in bankruptcy was in a period of extreme financial distress there were hard calls that had to be made about payment of payroll buying tires for vehicles obviously they thought they cite a one snapshot of cash on hand but that doesn't tell you what the obligations of the company were to its employees to maintain ongoing operations during this difficult and cast wrapped time frame so i would submit to the court it's their burden on summary judgment to establish this defense they have not established that asarco had the cash on hand to seek reinstatement during bankruptcy given all of the other obligations that occurred nor that the district court i mean choose me the bankruptcy court would have approved that out live and let me just pause on that for a moment as the court is aware ultimately asarco emerged extremely successfully from bankruptcy with full payment to all creditors one hundred cents on the dollar with interest and so it's not a metaphysical question of the bankruptcy court would approved that capital outlay that would have been required to buy back into this partnership because of course the bankruptcy court would evaluate that on whether the assets the benefit to the creditors merited the capital outlay and there was of course in extreme cash or ditch and when you have a full payment plan you don't need to pay out funds to get more funds into the bankruptcy estate you've got all the funds you need moreover buying into the partnership or seeking reinstatement into the partnership during bankruptcy would've if successful brought back on the benefits of the partnership but all the ongoing concerns of participation in this mining partnership act your honor and to find ongoing operations you can obviously need to try to find ongoing this is a chapter eleven effort to reorganize the country company and emerge successfully as was done from bankruptcy you agree that  cases that talk about the fact that claims that could have been brought is that in this case the right to reinstatement was like an option under the contract and the value of an option when there is no time limit is that it can be exercised at the timing and the value of the option holder and so even if the option could have been exercised earlier there's nothing in the law there's nothing in the law for a student kata or judicial stoppel that says you're forced to exercise it at that earlier time it's that would be depriving asarco of the value of that option it's kind of like i think if you enter into a rental agreement with an option to buy and then let's say under that agreement that you get in a dispute about your rental payments and it ends up in court well i don't think anyone would say in that dispute about your rental payments you have to decide just that if you ever want to exercise the option to buy for fear of losing it by virtue of claim for collusion you're in a dispute about rent just like the timing of the adversary proceeding we were in a dispute with m r i about the fraudulent transfers the dilutions before bankruptcy there's a dispute about rent and then there's an issue about whether you exercise your option to buy or we exercise our option for reinstatement that's a separate right no time limit so when the cases talk about could have been brought there talking about case matters it could have been brought based on the facts that existed and the facts then existing at the time of the adversary proceeding did not involve the operative facts and i think that's another key term from the law the operative facts under this court's transactional tast this court's going to look to the common nucleus of operative facts and the operative facts of this lawsuit are the tender in two that argument that was made today is that asarco should have been on notice by virtue of the motion to dismiss the original complaint in the adversary proceeding because of course that's the only complaint that had anything even close to having to do with this suit the third cause of action and in that response to the complaint they did make the argument that under the dilution mechanism they used of the agreement that you couldn't get back in but that wasn't a letter saying we won't allow you back in that wasn't a definitive position that they would reject that even if it was i don't think it matters because there hadn't been a tender but that was not a rejection of the ability to come back and you can imagine a lot of say you know what welcome back to the partnership agreement they never said that couldn't happen they never for close that and in any event that was a note that related to a claim we made in the adversary proceeding that we voluntarily dropped from that proceeding and as the court ruled below that case was taken out of the proceeding it was at most the only aspect of it that related to the present dispute was the declaratory or relief request so under three aspects of race judicata they haven't met their standard one there was no common nucleus of operative fact two it  was a claim that was brought in voluntarily dismissed prior to judgment so there was no final judgment on the merits with respect to that claim if you will asarco took it out and left that dispute for another day  market yes your honor and caspar a liar is the third point why it doesn't apply as the judge ruled below that earlier declaratory judgment reclast request is not for  close a later request for coercive relief now they make the argument that because the declaratory request was combined with coercive relief therefore casper doesn't apply there's lots of lawsuits where one company might sue another and say you've been friends my patents i want damages for patent infringement and i want to declaration that you're infringing my patents right so that's an example that where the restatement would say just because you brought a declaratory relief request you don't insulate your lawsuit from the operation of regular operation of race judicata as it would relate to your coercive request it's not  insulation from the regular operation but when you're declaratory relief request has nothing to do with your coercive relief which is the case here as the district judge noted then that's not what they are it's not redundant of your coercive relief requests there is nothing about our declaratory relief request that asked for the same thing as our coercive relief and that's where i think it's much more similar to the al gainey case from the third circuit  where very similar to casper wire that there was a backward looking coercive request in that case there was a forward looking declaratory request and the third circuit said in a case like that we're not going to apply judicata to the declaratory for looking aspect of that case sure to this so the matter is that look back to whatever facts existed at the time that would have given rise to claims shirt race judicata but we're not to penalize a plaintiff for having brought and saddled that declaratory relief request and i think that's very consistent with casper that said we're going to just analyze this in terms of issue preclusion but do you agree there's still a separate question to the declaratory judgment claim that was dismissed under your view doesn't preclude anything here but there's still a question of whether the claims that did go forward in the adversary proceeding they did reach judgment whether  effect in that comes down to this debate you're having about whether it could have been brought exactly just seems to me that's really the issue in casper wired most is really sort of a sideshow because it isn't it comes down to whether you know they say under davis you should have brought these claims before you distinguish davis i mean isn't that the you different answers that question but it isn't that the question you pose i totally agree your honor that you apply the transactional tast to i would say what was left in the ad roger  entrancingly at yeah after the amendment i would not argue that it ought to be applied prior to because we amended took it out but you apply the transactional tast to what was left at the and and on this point i would say that they make several arguments in the nature that they thought this matter had been resolved those arguments that is that they thought the reinstatement right had been resolved and all i would say to that is that those are argue in their brief they don't cite the facts to support that and the facts that we do know are that they had voluntarily dropped that declaratory relief request all that resolved the five for four litigation at the end of that adversary proceeding was a stipulation in order dismissing with prejudice there was no general release of claims they got a stipulation dismissing with prejudice what was left to mr came who represented m r i on august twenty one of two thousand and nine in a status conference before the bankruptcy court mr came said and this is on the record at eight forty six he said the lawsuit this is eyes attorney the lawsuit that is on file is a five four four slash five fifty lawsuit fraudulent transfer against us and that is all that's in the lawsuit so they understood very well what they were having dismissed with prejudice they got that fraudulent transfer done it makes sense because this and the dismissal happened by the way just a few days later as mr came also argued to the bankruptcy court the fraudulent transfer was no longer a necessary action in bankruptcy because at that point the full plate payment plan was in the works and you don't need to set aside a fraudulent transfer which again would reap money into the bankruptcy estate doctors what's the real reason for the delay well i think clearly your honor in between when we started missing the cash calls again there was a prolonged period of extreme financial distress on asarco part and that's when it did get diluted down to zero percent again for just the value of five million it it was deluded out of to zero percent in a partnership it's been a lot more money into and so when you try to get back in that partnership in two thousand and eleven it will it is a valuable partnership and and so what happened was is sarka went through bankruptcy it had all those cash problems it had all the creditor problems ultimately in two thousand and nine it emerges from bankruptcy full payment to its creditors with interest now it's back in control of its own destiny so to speak is a business it's emerged from bankruptcy it can make decisions about cash on hand and where to invest its money the partnership agreement has the reinstatement right that reinstatement right has no time limit in it this is a mining partnership and mining partnerships can last a very long  time if the agreement was from one nine hundred eighty nine these problems didn't arise until the dilution problems that miss cat cash call until two thousand and two two thousand and three and the partnership is still operating today and so these agreements go on for a long time and asarco decided that it was in its best interest to tender the funds and seek reinstatement into the agreement as the agreement allows it to do that ch that you only get a little over one percent of his reading of the agreement right that was your honor that was his ruling on summary judgment we respectfully disagree with that ruling although we've not appealed it at this based largely on schedule g or asarco master list an interest in a joint venture agreement doesn't say anything specifically about a claim for reinstatement or a right to reinstatement  she is generally why is that enough and then second isn't it contradicted any notice that provided contradicted by that statement of financial affairs that listed that partnership interest but then said it was dissolved yes your honor thank you for bringing me to judicial and stoppel to answer your honor's question it was an adequate disclosure at the outset because in the distinction i would make the coastal plains case was cited by my fellow counsel and certainly coastal plains teaches that claims need to be scheduled but in practice i think what that is applying to clearly where your only relationship with another party is by virtue of a tort claim you have no other you know they hit me with their car i had no relationship with who hit me with their car before that my only relation to them is by virtue of this claim i may have against them and those claims need to be scheduled if they exist at the time here what we had was a partnership agreement that was disclosed on schedule g part it was called joint venture but argue it sufficient it's clear it's what it's referring to so we had a partnership agreement and there's nothing in the bankruptcy law that requires you to list every possible claim that could flow out of a contract or an agreement to say you know there's a lot of provisions in this contract and you don't have to sit there and say we could claim this if they do that right if we were to tender and they were to say no we could claim reinstatement we could claim dilution you list the contract and then either as we were the debtor in possession or the trustee is the case maybe can then inquire about the claims that arise under it and that was the difference with coastal plains because coastal plains there was no disclosure of the claims on the schedules and most of the claims related to tortious interference these types of issues that wouldn't be disclosed by examination of the contract itself so there was this scheduling of the partnership agreement and then of course later in the adversary proceeding in the original complaint there was the right to reinstatement that was identified and so your honor earlier mentioned the standard of review and it is abuse of discretion now obviously if there's a clear legal error that's going to be one issue but i would submit there is no clear legal er r that this report which also by the way confirms that confirm plan on this are the abuse of discretion normally judicial stop was about whether the court was misled essentially it's a i'm not sure how it fits here because judge payne in wasn't the bankruptcy judge should be given that deference since he wasn't there in the middle of this bankruptcy don't know if the bankruptcy court was misled he actually was the judge who entered the confirm plan so he wasn't a hands on bankruptcy judge but he did have that visibility on the front end but yes your honor judicial stoppel comes up many times when it's a different judge in the second case than it was in the first case and what the district judge did was that standard of course is that it has to be clearly or plainly inconsistent in the positions because of course it's an extreme sanction to apply judicial stopover for close a claim and so the court's only going to apply when the party is clearly speaking out of both sides of its mouth and the judge below exercise his discretion to find that wasn't the i wanted to clear up a few issues that were raised the the disclosure on the statement of affairs in fact listed the partnership as dissolved and that's record on a record of appeal stipulation had previously had a reservation of claims against montana and that the plan was struck through those provisions five point one of the plan were struck through and there was no express retention in the plan of any claims against montana resources and they had a schedule or preserved claims and nowhere to be found on these claims with respect to the any claim reserve resources so you not only had no scheduling the on the schedule be of any reserve claims of any causes of action they merely had a listing of a contract and schedule g i've been at unable to locate a case that says merely disclosing a contract allows the disclosure of any cause of action in the needing out of that contract and in fact that's not the law  in all of that this court's decisions so you must disclose the cause of action in so that's a key point and we've raised with respect to you in our page sixteen of our reply brief about a potential  honor in fact that's precisely what caused the plane says is potential causes of action any claim with any potential and that's why we believe with respect additional stoppel this would have been a potential claim because when when the adversary was initially have a service filed and then we've filed or motion to dismiss saying you had no reinstatement right then they immediately dropped that claim for the reinstate or the ability to obtain approval by in the bankruptcy court there was at least based upon the sarkozy view a twenty one to one return that they could have obtained because they believe their interest was worth a hundred million dollars  and that all they would have to do is tender if montana had accepted five million dollars and so again the business judgment rule says they would have been able to tame that approval by the court b to be clear there was no question that they had the cash to says fight the tender requirement i would note the district courts in record seven zero zero four the district court said additionally the de or in the past few years has been operated a successful mining venture is cumulated over one billion dollars in cash assets while waiting plane confirmation a circuit on the public record in the multi operating reports clearly had anywhere from five hundred million up to one point two billion as a confirmation so there's no question that they had the cash there was an automatic stay on pre partition obligations they were negotiating those obligations in the plan they were operating month to month their business and they had ample cash they were overflowing with cash and they could have exercised this right from a cash standpoint they were they were not brokers they as they suggest again in that they sided distinguished as a case to rely on in allegheny you had several key distinctions but most importantly in allegheny there was a agreement that result the first  lawsuit that expressly allowed the splitting of claims there was an agreement to allow after the settlement pursuit of the claims following the settlement under the insurance under the insurance agreement and that agreement  was would look back and see if there were claims that might arise in the future including audits were including a complex formula on how to determine what might be payable in this instance before the court you knew in circle knew what the obligations were five million dollars plus interest thank you we have an argument