today requesting that this court consider reversing the district court's entry of judgment in this case because it was premised upon a mis characterization of a settlement and the release of claims in a bankruptcy it wrongly assumed without any analysis that a section three sixty three analysis was appropriate in light of this settlement agreement that was the two and if we look at the excerpts of record at page eleven the district court circuit to my knowledge has not specifically ruled upon the issue of whether or not a three sixty three analysis and a rule nine zero one nine and no assists have to be brought at the same time the closest we've seen is the back opinion in mickey thompson and while it's certainly  persuasive as we know it's not binding but even in the back opinion which both cases cite to that case said that those two analyses can overlap but they're not required to both be brought at the same time in page sixteen of the polies brief they took the position that the court must apply to both in the scenario and we believe that is correct if we look at the mickey thompson case the point of the case is to apply three sixty three when there is evidence that there is a purchase of a claim for an amount higher than a settlement that is desired to be brought in for one and number two when there's no evidence that any claims were being released that was a specific circumstance of mickey thompson and in those instances the bab's said you know no one nine analysis isn't quite enough here because really we need to do a sale analysis under three sixty three and it imposed it took the position that both can apply however that case did not provide any real guidance for distinguishing when the three sixty three cell requirement should be imposed and when it should not it just said the lower court should consider whether the settlement would like be likely to draw higher claims and what we have in this case your honor is essentially that the rabbit of the settlement is a release of claims how do you purchase a release of claims and specifically we have the first citizens bank release of their claims how do you purchase those the only thing that was for sale in this settlement agreement was the sale of the chosin action involving the avoidance claim everything else was nothing more than mutual needs and claims that a minimum the district court could have carved out that avoidance claim as a separate sale done in three sixty three houses there but reserve the nine a one n one zero one nine analysis for which is merely a mutual release of claims so if i understand your answer correctly there's no authority that supports the notion that three sixty three can apply that this sort of situation you know well there's no authority that it can't apply i would say there's also no authority that it must apply the best we've seen is that it may apply at the same time and as we've seen as they mention in the mickey thompson place so are they any good policy reasons why it should apply in a situation like this yes your honor the point of a nine zero one nine analysis is to offer a fairness and an equity showing that the trustee can make a three sixty three analysis is appropriate when the goal is to seek additional funds and to try to find more money over bids and to provide finality to those over bids and typically that applies to third parties to give them some solace that if they're going to make an overbid that will be fine on that if there's an appeal mr is going to stay that over to proceed be permitted to go through if we impose a sale requirement on every single settlement point because we can because a belt and suspenders because if we want to make sure that these are all final it's going to really chill the efforts to  to allow any anyone who thinks they've been wronged by the settlement agreement to challenge number one because oftentimes the obligation to stay that order proved too daunting why would the obligation to state that order prove to don sometimes they can't afford to bond  it and it imposes a layer of review on the district courts that we believe are not warranted for example in this case the sale component of the settlement agreement is really just the toe of the dog here this is really a release of mutual claims this is the bank releasing several of its claims this is the better releasing its claims that's what's going on here if you look at the excerpts of record at one forty forty one forty five it shows the actual settlement agreement in fact it's called settlement agreement including general releases and sale of assets and so that's as is pluralized but as noted paragraph three point six is the only asset that's referenced and that's the avoidance action paragraph three point one to three point five which can be found at one one forty four of the record all talk about withdrawals and dismissals of claims how can you overbid those how can you over bid the bank releasing its claim you really can't and yet everything is tied into the three sixty three analysis leaving the district court to find that because there was no state raised to that the entire appeal was moot we believe that that was not a law that let me segue way into that slightly different aspect you've indicated that there's no authority that three sixty nine in fact while well not directly relevant to the case the tentative order by the bankruptcy judge and even reference three sixty three the final order did reference three sixty three our position was it wasn't from what you would have  or did reference three sixty three correct so by your analysis you knew that if you didn't have a staff this might apply if you three sixty three in fact does apply right correctly or this  not a big surprise what you're here for forces try to get us to say that three sixty three doesn't apply correct around again and there is some some precedent for that if we look as a noted the one circuit doesn't have any case that says that directly  there is a precedent from the first circuit the health care case that we cited in our brief says that the settlement and a sale are different things are to be treated differently you don't automatically impose a three sixty three analysis zero one nine analysis i think we have your point that there's nothing requiring three sixty three be used but i think you also have indicated that there's nothing to stop the use of three sixty three correct your honor but that goes to policy reasons you're saying this is this to me it's a release i could anybody overbid this is no policy reason to use three sixty three but you're not citing any cases that you can't use three sixty three in this situation correct and as i said your honor it could have been separated out it could applied or you agree that it's moot if three sixty three was properly applied it's not automatically moot because that in this case you agree it's no because then we go to the good faith analysis which we believe the district court also got wrong and i can certainly move to that argument if you'd district court did in fact do a good faith analysis because that would be an exception to the moon is the district court said because i'm finding good faith i'm therefore finding the mood of supplies so we believe that finding of good faith was not supported by the record  required to be shown but it's imposing a layer of added difficulty on these kinds of cases when we believe it's not necessary and not appropriate as i mentioned in the health care case the reason that the first circuit found that there was no requirement to have the three sixty three on the nine to one thousand together is because of three sixty three as no value to the settlement the sale and the settlement are two different things the point of the three sixty three is to encourage higher bidders interpret to protect finality and that's not necessary when you're when i was there no good faith in this transaction well several reasons your honor first of all looking at the looking at the findings of the trustee the trustee obviously is required to act in good faith has an obligation to act in the best interest of your state here the trustee found that the claims against the bank were properly waived for nuisance value and we believe that was improper because those claims had already survived motions to dismiss talking about whether there was a value i'm asking where is the fraud where's the collusion where is the failure to have arm's length negotiation here i mean the fact that they're both appealing that doesn't correct well the let's look at the transactions your honor that the trustee made judgments he glossed everything under the under a code of this is my business judgment so as to try to you know get it all under the business judgment but that's not bad faith for purposes of three sixty three a while well it's it's not good faith if they were not arm's length negotiation came here to that ok so so the the trustee only looked at the appraisal provided by the  bank did not consider mr delis appraisal and the reason was that while there was no declaration from the appraiser authenticating it well there's nothing in the record showing he sought to reach out to the appraiser if we're presenting an appraisal that's seven million dollars more than the appraisal that's being presented by the bank presidents incumbent upon the trustee to actually look into that appraisal and see if there's anything to it before simply i believe that shows a lack of an arm's length negotiation here when he's just blindly accepting the bank's appraisal i'm going to that well to have a good faith negotiation with the bank you have to have a clear idea of the value of the assets that you rid of that deficiency entirely and it would make the need to resolve that claim moot because there would be no deficiency likewise the trustee look at the administrative claim the bank was was assessing the amount of two million dollars and said well it's not clear as to address that issue ok i'd like to start by pointing out that this is one transaction this was a sale and a settlement of claims it was a sale of causes of action against a third party mr a meal chappelli that my client f bank in trust company purchased not only did the first citizens purchase those claims first citizens has pursued those claims to a summary judgment in front of the united states bankruptcy court for the northern district of california so to suggest that the sale aspects of this transaction were the tail wagging the dog is is simply incorrect this was a settlement and a sale combined and so under mickey thompson and the other cases that have addressed this issue it was perfectly appropriate for the district court and also for the bankruptcy of cork to apply both three sixty three and rule ninety nine hundred to this transaction this is not the health care case from the first circuit first circuit which was simply a settlement transaction this isn't even quite frankly the mickey thompson case because the mickey thompson case did not involve as we have here a sale of claims against a third party in that case it was it was simply a sale of the of the claims that were also being settled so i don't think the court needs to even reach the question of whether three sixty three can apply to what looks like a settlement because here we have a sale and  settlement i also think that it's important for the for the court to realize that you can't take this transaction and separate it out and say i'm going to apply three sixty three to the portion of the transaction that dealt with the sale of these claims against a third party and then i'm going to apply rule ninety nine thousand to the settlement portion of the transaction and not apply both rules to the transaction as a whole it was one it was one deal that involved the sale of these claims and the settlement and you can't you can't parse that out and turn it into two transactions when in fact it was it was not two transactions even if the court were to decide that three sixty three does not apply and i think the district court got it one hundred percent right but even if a court were to decide the three sixty three does not apply this case is also constitutionally moot because my client has taken substantial action this following the sale of these claims against mr chakotay as i mentioned before we pursued those claims to judgment we paid the we paid the settlement sum to the trustee the trustee has dispersed the settlement proceeds to a certain extent it's a priority unsecured creditors who is the court may be aware a paid first in bankruptcy proceedings when there's no secured creditors that money is gone but a lawsuit that mr adelie brought against my client was dismissed several years ago  apply to this case is also constitutionally mo i think under those circumstances and i think like i said before all of all of those do apply and it is moot but under those circumstances i don't think the court here can reach the merits i don't think the court has the jurisdiction to reach the underlying merits of the sale or because the district court needs to reach that appeal first and the district court also has to have an opportunity we did not submit all of the evidence that we had of constitutional m was briefed so long ago the district court should have the first opportunity to consider the certain additional actions that have happened since this appeal was briefed and by way of example for instance the litigation appeal was approved but the district court should have the first opportunity to consider those there's a lot of new facts that would have to be taken into account but we can't do   requires clarification for future cases your honor i think this is bound up in the facts of this particular case because we have a we don't have the purest settlement transaction of what looked a lot more like a pure settlement transaction that mickey thompson involved and that led the first circuit and health coke so i conclude that three sixty three did not apply here we really have a sale and a settlement all wrapped up into one and so i don't think the court is is called upon to answer the question of does three sixty three always apply to the settlement transactions could could we answer with respect to the sale portion so  since you indicated there were shows of action this case claims against mr adelie i think that were pursued you have judgments and so on that's clearly a sale would be helpful to have an opinion if if if i'm not sure you can answer this because if it went the other way you would like that but if you think that portion of the law needs to be clarified by our case law you know i think the fact that it was a sale it's quite clear already under existing case law that three sixty three applies to the sale aspects of the transaction and if the court is inclined to issue an opinion it would i think it would provide helpful guidance to practitioners but i don't this because this is a hybrid situation correct  appraisal that mr that the appellant relies on had been tendered to the bankruptcy court in connection with the relief from stay matter and we reviewed the relief from stay pleadings the bankruptcy court excluded  it was an appraisal intended to obtain financing not a real property valuation and given that the bankruptcy court prior to the trustees appointment had already rejected that appraisal as credible evidence we did not give that appraisal the weight that appellant argues we should have we also have bills and oranges to ation from the trustees exactly your honor in addition we have a sale price this property following really from stay the bank was able then to hire a real estate broker or the broker market at the property they obtained seven offers and the property ultimately sold for eleven point five million d that it was fairly unlikely that either would be able to establish proximate cause damage to those at the time of trial and for that reason we felt that the likelihood of prevailing on the merits for the ninety nine gene analysis was very uncertain but in terms of value the trustee determined based on his business judgment that the claims had a value a nuisance value between fifty procedure specifically put no limitations on any on the kind of offer that any party could make and there was no requirement in the bed procedures that the a pallet or any other party match the bank chose not to tender a bid but the fact is that our bed procedure was provided that the debtor couldn't any party could proffer any kind of bed and we had a duty to present it to the court so the trustee was not  decision maker in terms of which would be considered by the court we intended to present everything and i think that fact weighs heavily against the collusion argument your honor couple of quick points as to your notation as to whether or not this case requires clarification i think it absolutely does i think this issue of whether or not analyses under both three sixty three and ninety nine nine hundred require some guidance by this court the key thomson case is not a purely a settlement case in the good times and case started as a settlement the third party objected to the settlement offered to make a purchase above the amount of the settlement and that was why the the court that said well you should have then made it a three sixty three because somebody wanted to purchase about the amount of the settlement that was very limited to those facts and it says specifically that it may apply in some circumstances it offers no real guidance to practitioners as to when a three sixty three analysis was required and when it's not and i think this court would definitely be hoping bankruptcy practitioners to have some sense of when the three sixty three has to be required as opposed to may be included as to the constitutional move this issue that was raised actions have not happened the the appellee took actions after the district court issued it order this appeal has been pending they've known it's been pending they can't i think it's sort of not genuine to claim that gee we've done all these things when they knew this case was on appeal that we didn't raise these arguments and you disagree with the fundamental premise of the district court's order and resolution of the claims involving the avoidance which was the sale and frankly there's no reason this can't be parsed out between the sale and the settlement as to the claims he says can be reinstated this was an adversary proceeding before the bankruptcy court you it's been dismissed it can  revived these are all the same parties even seen as only the same creditors of the same debtors involved i thought you agreed that that if three sixty three applies and you didn't file a state except for the good faith exception you raised that it was equity which i believe is the proper analysis here and we believe that the case should go forward on those grounds and for those reasons we request that this court reversed the district court's judgment reinstate the case and if nothing else allow the district court to make the determination under ninety