district of yeah i'm stuck i don't mean that i mean i'm sorry you're absolutely correct the discharge discharge his claim so there is jurisdiction i believe to hear this or at least we're not arguing otherwise but he doesn't have a claim because it was discharged and the reason for the charge just the discharge issue you decided the litigated the pennsylvania district where did you not so you are we brought an action in the bankruptcy court in the southern district of new york to enforce the discharge injunction but the court allowed made clear that it was going to move forward with mr ellis this action which w  st filed and he had argued in this is recounted in the district court opinion that that court the court allowed the authority to move forward because that was the st filed action so we adjourned our motion in the bankruptcy court and have been would and i realize that may not necessarily apply to a case of just trying to figure out what kind of claim is being made ellis claim let's assume his claim a rose creek petition and was reduced to a actual claim exceeds the estimated amount paid you'd have to go through a proceeding in the bankruptcy court to collect on whatever the overage was now here that wouldn't have been a problem because his claim would have been paid and fall from the estate and i think that illustrates exactly the problem here because it would delay the distribution of estates proceeds to the other creditors if it were the case that we had to wait till the end of the limitations period and potentially estimate and i guess my final question just trying to make sure i understand things if his claim a rose post effective date what would likely prevail so then we'd be in a completely different scenario your honor he'd have a claim that arose not against the bankruptcy estate but instead against the reorganized debtor and then we would be in a situation where he could potentially bring that claim elsewhere and here i think the the facts are particularly relevant here because in the last thing houses and every organization administrative claim liability was assigned to wind down company date what happens if some some claim of the ministry of claim arises during that time is that going to get just charged or under a future plan might it be because with administrative claim at least to getting paid plan in the code guarantee full payment and it's generally the case that claims arising after the petition will be afforded an estate of claim treatment so i think the hypothetical you're talking about will really arise but i agree that in a scenario where he stood but my understanding is that the bankruptcy bar a lot of people don't understand these to be you know there's some disagreement and some of the lower cases you know if it's in an indirect way that it's for the benefit of the estate so what we do with that problem that maybe this has been the law this whole time but a lot of people have been ignorant of its you know status as administrative claim employment lawyers don't necessarily know to run to bankruptcy court to to file a proof of claim should that concern us a semester of due process notice i don't think it should concern you your honor because the notice that he received a be effective date was quite clear that if he had a claim against the state arising during the bankruptcy that he had to bring it into bankruptcy court and i think the promise of full payment in the bankruptcy court should be incentive enough to encourage people and their counsel to bring their claims there so i don't think there's too much of a  relied on sanchez and good reviews was getting to the point of the for the benefit of the estate language and i just wanted you to comment on how would the continued employment of an individual be beneficial to the estate and i know it's not you know that's the argument that they profess i wanted to know what your reaction to that yes your honor two points on that the st point is that one of the most difficult challenges bankrupt and  this fresh start and i think that potential liability for claims arising from terminations of employment is part and parcel of that employees who don't have a guarantee that their claims will be paid have every reason to look for other employment and i think something to note about else's position here is that by arguing against administrative claim treatment you would be harming all of the other people similarly position because it would be not denying and priority and they would be forced to collect in his world along with other unsecure claim i think the question the two questions you've been asked really come down to this even forget that his counsel was a labor lawyer let's assume his counsel was even a bankruptcy lawyer how was counsel even know that a terminations of his client is somehow beneficial to the a state that it qualifies as five o three minutes spence cl honor i don't think that's the standard i notice doesn't have to resolve every single potential issue that might arise it just has to be sufficiently clear to reasonably convey the required information which here was that if he had a claim of this sort that arose the against the context but but the notice that went out on august st was administrative expense part of it right yes and my question to you is how would even a bankruptcy attorney normally think if your doing you know you know how you and i normally would think of an illustrated expense claim you do something to preserve or benefits the estate this gaga can't so he's terminations was part and parcel of the reorganization have claims against this entity that is in they you should file them in the bankruptcy court i don't think it's beyond even a lay person but certainly not bankruptcy counsel or even non specialist counsel to recognize that perhaps to file a claim in the bankruptcy court and again if he did some of their he had the opportunity to receive full payment and he hasn't said he didn't have enough time to file in the bankruptcy court he certainly could have done so let me ask you this question just changing authorizes discharge under an administrative claims are a date well how does that war if there's no language in fargo three sides to discharge alludes to discharge how are we by congress later is clearly intended to give the bankruptcy court exclusive authority to decide whether or not and untimely administrative expense claim should be allowed if it were the case that initiate expense claims to bring their claims elsewhere far into august right september one but the one thousand one hundred and forty one dollars d argument is pegged to it would be discharged not at the end of august but at the beginning of august and the effective date so if each stands independently how can that be to discharge states about the two separate dates the reason the end of august state exists was to ensure that claimants had enough time to file their claims because if a claim arose right before the effective date they might not have had enough time if that were also the discharge date is you're turning the r date into a discharge date when there's already a discharge date of august st and i think it you're suggesting that five to three is like a disc feasible discharge dated in this case  one supersedes it but that's doing a lot with a provision that just says you can file with the expense timely or you could pilot tardily which is that's all about the claims our data does it's not about just charts there are other provisions that speak to discharge so it's just here but you could imagine another case last for example there is no confirmed plan and no effective date and the discharge of administrative planes is achieved only by the standing of administrative are they under five o three and assuming there were no discharge the claim still could have been discharged but in the discharge would have had to comply with due process so he would have had to have an adequate opportunity to raise and collect on the claim which he had if you are now i realize that you were nice to me based on your answers to the a concern about what the limiting principle is here are there any limits to you know how long after confirmation an effective date can occur it seems like you could have situations where the course months is here or years afterwards exist to prevent companies from wanting to be in bankruptcy in the st place ensure that they won't let its period pan from confirmation to the effective date for too long in certain of the confirmation standards are also tagged to be a fact if they so it might make it difficult to achieve discharge is limited by b and that only claims against the bankruptcy a state can be discharged so only claims that come up during the bankruptcy against the bankrupt and if the will be discharged but that said that could take some time and as  case here there are often reasonable explanations for the delay here it had to do with regulatory approvals last in house operates in a highly regulated industry so those delays are sometimes essential allowing for confirmation of a plan that might require certain if a claimant has no opportunity to present their claim at all and seek payment from the bankruptcy court then you have that then you would likely have a due process problem so i think that was what this island court was referring to but of course they didn't answer this question which is when you any debts which follows or it could limit before the date of such confirmation and it chose to go with the i guess you go chose to go  the modification of confirmation to effective date of confirmation it's not clear that confirmation standing alone could refer to the effective date i think when you have questions about when the judgment becomes final preppie all purposes that we're not dealing with it says it is the subsection which would be d in the plan or the order d the confirmation does x y or z except as otherwise provided what you think it modifies i'm mourning your honors i must start out by saying that unlike silk stocking wiles gottschall bankruptcy counsel i'm just a plain folks country lawyer and so i'm going to be relying on the learned opinion difficult issue involving a couple of provisions without a whole lot of case law that's truly helpful so tell me what your theme is well st of all the very reason that the understand even if my client brought it to me we know that because employment counsel for the defendant didn't get it for over a year they didn't raise the issue in their defense in their answer nor in any motion to dismiss so this isn't exactly like this is something that my client could factual questions that you might be able to help us with they were what was the title of mr dallas he was just a viper senior vice president of he his job was to to ensure that prior the projects went forward sort of a project senior vice president project managing sort of though he was a senior officer at westinghouse sec rect that's correct and how many years had it been with westinghouse roughly seven or eight something like that and when a senior officer is that guy like this is there a separates package if you if you rip released all of your claims yes so in other words if he released his fans he would get a severance package  there is no evidence in the record that this term a termination anything to do with the bankruptcy in fact the record doesn't include this because we didn't finish discovery but we have evidence to suggest that westinghouse post bankruptcy developed a plan to get rid of older employees and we have documentary evidence to show that so this claim that this is his term as was part of the bankruptcy has no support record and well i mean it is said in a brief that the employment discrimination claim there will be resolved by article three judge not a bankruptcy judge but wouldn't that typical reaction is when bankruptcy court it got discharged therefore should the st place you look is do i possibly have a claim in the bankruptcy or at least prophylactic lee files a claim in the bankruptcy case just the preserve my position well the trouble with that is that when you do that you waive a lot of your rights starting with the right to a jury trial not only does the district court have to agree with the bankruptcy judge to allow a jury trial and back up the case the defense has to agree to it as well so the defense holds the key to whether or not a jury trial is available to a plaintiff when the law clearly provides for a jury trial in these matters but why is it that it would have to be in the bankruptcy court i mean it might be complicated too but you could arrange for lifting the automatic stay long enough to actual you know once a perfectly misfiled to allow that you know that the trial could go forward in another court even if the judgment is ultimately collect couldn't the two courts cooperate in that way well st of all the defense has to agree to a jury trial so they can thwart this claim for good if it's in the bankruptcy court you're right i mean it could be in order for the bankruptcy judge to order a jury trial in no matter where it  held well is the bankruptcy court technically ordering a jury trial or allowing the proof a claim to kind of trees or hold on to enough money to satisfy potential judgment and then allow the trial to go ahead in the district court wherever it would happen decision for the bankruptcy judge in conjunction with the district court's approval of it but it's the bankruptcy court judge's decision and that decision turns on whether the defense agrees and so if they don't agree you don't get a jury  time in your brief trying to employ sanchez to say there's no benefit to the estate so this claim can't be an administrative expense clean but reading seems pretty straightforward in saying that it is how do we get around that might my focus in both sanchez reading reading reading and in re your bar is even if that's so these days do not appear doesn't appear the five o three is talked about discharge ability it talks adversary tried to answer whether this could be done independently that is five o three on by itself and i i think what i got from him is that no the answer's no maybe possibly but  the answer that in the end it's not potentially dischargeable st of all they start with hollywood which the defense takes a position that that judge thomas got it wrong he was just inaccurate but he said we don't see the effective date i mean how's that really apply to our case well because it's like like you know holly well this is a post confirmation play and judge thomas says that those confirmation claims are part of the bankruptcy and by the way claim and the issue is can the united states recover on this tax claim that i'm having trouble with the applicability of that particular principle to this case you know  existed after the plan took effect it wasn't an administrative expense claim against the estate so i don't understand how holy well really applies to ark well i mean as i said it seems that the general proposition set forth by well it didn't appear to under there's a distinction between confirmation date and effective confirmation dates when you get the order of the court confirming a plan but it goes affective sometimes right away sometimes months later because in some cases you need regulatory approval for example and i don't think the court focused on the distinction between those two concepts well is ready to jump and the facts situation is different what it's true that it mentioned the fact that they had taken subject to the plan they were bound because the consent but it didn't have any occasion to draw a line between plan and the confirmation a confirmation was a final judgment that bars later challenges the plan and that this did not implicate i mean the point that the judge made was firing to malice wasn't part of the plan and i think that's a right there that's that's the right argument to make and by the way the defense relies on a couple of cases say that employment claims like this are are dischargeable as post as administrative expenses claims but both cases are in apas it st of judgment because it talks about how the reinstatement issue can be solved by a money payment and therefore it can be included as an administrative expenses plan but my argument goes back to the article three argument is that you can't make  the reinstatement supposedly the preferred remedy in these cases and when you take this into a bankruptcy court you take that out of the ability of that judge to make that determination and i'm the mere paying the payment of money isn't the same as reinstate and so you once again you lose that portion of the coverage and by the way you also lose the e e o c ability to to mediate the case when you go with the bankruptcy court and as i said your are your your i thought that the bankruptcy judge could order the case to be tried in a district court i don't know if there's any support in the record then in any case nor in the back of the code to support that that that can be done nor do i know of any example chris i'm not an expert in these matters but i haven't read any example that says that that has been done in any employment case i also did want to make a well let me ask this question just sort of a general question to get your view arise beyond the effective date and beyond the administrative claims bar day how how should we think about this you know one of the one of the points that the judge hornyak made in his opinion was  he was concerned about the amount of time between the confirmation date and the effective date and there was no effective line drawing but how should we think about what you're asking us to do which is something beyond the affected date and beyond the administrative expenses claims party i mean i st off i think that the the when when a party like my client rand provided you wanted cash for a claim and the plan provides that you get paid in which it's you can come in afterwards and say even though i didn't get notice or think i wasn't involved at that time when the plan was confirmed nonetheless you are you have the ability to go back and say no i don't want to get it which is i have a right to get well my understanding is that the confirmation of the plan makes this race you're caught in that order of confirmation is refuted cotta and without an ability to participate prior to that order becoming a final order that we didn't have the ability to make meaningfully participate in the c and that's what jan th saw also why he argued against the interpretation by the defense of the phrase that that's at issue here except as otherwise provide let's just say suppose a plan said it would pay all t was a quote and it was a post confirmation creditors he did not agree could he still challenges treatment under the plan africa after confirmation i think that the beginning challenge is he does not get full relief from the bankruptcy court so i think the answer is yes he can come in and say i'm not going to get for relief i'm not going to get the benefit of the mediation program i'm not going to get a jury trial unless the defense allows it i'm not going to get reinstatement unless an article three judge somehow gets involved which i don't know how that would happen so i think the answer is yes he should he should argue i do have a chance to yell about this before i should be held in this now and i think that claims that arise post confirmation like this employment claims should be then it's ok in my argument and again it's so simplistic because my lack of education on the subject but if if the the plan's confirms what the estate is and what the debts are they're going to be discharge and this arises after that fact and unless you can quite qualify this as an administrative expenses claim then it shouldn't be part of the back procedure and the fact that i mean there's a the argument is that this is not an administrative expense plan it doesn't benefit the bankruptcy estate it isn't part of the transaction with the bankruptcy estate therefore it shouldn't be considered an administrative expense by and that's what judge warner it any further questions my colleagues no thank you thank you very much by penalties other things that aren't intuitively benefiting the state and so the text itself suggests we need to take a pretty expansive vision of kind of the costs of continuing to run the entity right because the whole point of chapter eleven a you know at least final three is going to apply to a bunch of chapters including chapter eleven that involve ongoing concerns here and so for a term in an ongoing concern for chapter eleven it's going to pay some some fine some penalties the kinds of things that reading reddit pretty broadly is saying you need to do this it's not it's not benefit in a very direct sense it's just a cost of doing business the way that a fine or a taxes that's i think that's right and i think that's exactly what reading was getting at that cost ordinarily incident to the operation of the business should be treated as administrative expenses and five hundred and three b n defining those claims starts with including so i think there's room in a statutory tax for exactly what reading was doing which is saying that costs that arise while the debtor is running during the bankruptcy should be argument is that that's part and parcel of the bankruptcy scheme that think if he changes the rights of alabama if he wanted a jury trial he could have asked for it in the bankruptcy court as he acknowledged and then it the main answer to the question is just that get a stay in one court and have it dealt with another court and then you come back and determine to what extent that may be in the bankruptcy court you estimate it but why doesn't the jury trial play out in the western pennsylvania even if the jury trial played out and even if mr ellis could prove his claim he would still have to go back to the bankruptcy court to bring him to ministry to extends to have it allowed and collect against wind down co which is the entity paying out a ministry of expenses and by setting up our date the bankruptcy court made clear that tardy claims that were not filed by the bard it would be allowed only for costs so he would still be in the same problem even if he in the i mean it almost seems like we follow what you're suggesting here that we're asking for the supreme court to do another wellness decision or or stern be marshall before that i mean why even get into that area i don't think you need to your honor i don't think it's necessary to resolve the narrow statutory question that certified for appeal which is just whether it's actions by both three and one thousand one hundred and forty one authorized the discharge of all claims arising against the a state during the bankruptcy and i think there's a straightforward way to answer that question which is there's no dispute that the baker to court can extend the life of the state through the effective date and there's no dispute that it can discharge administrative claims at least arising before confirmation so the question is whether reading these mutually reinforcing provisions together should be understood to strip the bankruptcy court of authority that it has previously even while empowering it to extend the life of the estate three effective days so i think what do you what do you think would happen if the district of new york it would have precluded the fact in the western district of pennsylvania now as you were highlighting earlier the proceedings below i suggest that we defer to the western district of pennsylvania which it made clear its intent to go forward in this case rather t jurisdiction in the southern district of new york but practically i don't think it matters the question here is a pretty narrow statutory one and mr alice has disputed that it's appropriately before this court but when i looked around to try to the only thing i could find and i think it was in your briefs is judge chapman's bench decision in cumulus media and there's not a whole lot out there is there there is in your honor and i think we have a see payment by a bar date and you fail to do so your claim is discharged now i think the other reason why we don't see cases on this perhaps is that when people have an opportunity to seek full payment in the bankruptcy court they take it and indeed  to extend the time to file for god so if someone has good reason for not filing in the bankruptcy court file if they could then bring it to the bankruptcy court to get an extension so i think it's the rare case that has made it to appeal as you think a few cases do