of defendants without ever making them bear the counter weight responsibility for the actions of their purported previous in defending and settling litigation kohlberg calls itself a party to the initial litigation while song simultaneously repudiating the early when a bankruptcy is filed the chapter a life in the gutter becomes a debtor in possession which is more akin to a trustee and it's required to act in the interest of its creditors so i some of the third parties that would be released would be apparent obviously in this case the specific release that was negotiated did not release  said our brief there are numerous examples of twelve you six motions for a single employer parents being dismissed out of cases because the allegation is in the main are insufficient and that in this case the information that was necessary to as i understand that the settlement agreement that resulted in the judgment in the bankruptcy adversary proceeding expressly said that  saying that where a judgment is based on a settlement that we look at the intent of the parties rather than traditional raised you look at the principles settlement agreement that was reassuring concluded that even though the second suit parties were in joining to buy that sort of agreement because there was no monetary damages that they had to pay the second suit could be brought against them so the rest of the facts of that case is circumscribed by by the scope of the release so the parties to the initial litigation to find what they initially to action was about and then that later determines what can be brought and that's a logical result because the settlement that's being is being bought by the plaintiffs for a release and the scope of the release is what's going to determine the value that those plaintiffs can get in settlement negotiation so in there are lots and lots of cases about race judicata being a political to parties that were not there in the first lawsuit based on a theory of adequate representation or virtual representation what have you class actions are a good example of that that is not the doctrine of race to god that we are dealing with here kohlberg never a light on it it has nothing to do with this case the doctrine of race judicata that we are relying on is the doctrine that when a plaintive is looking at suing a defendant and they are aware scuse me and they are aware that there is another very closely related defendant potential defendant against which they have the exact same claim because of that underlying relationship that the burden is on the plaintiff to bring both defendants before the court in order to avoid inconsistent results if that claim were to be split in order to conserve judicial resources in which nine figure case to rely on for that proposition of the davis right case your honor in which judge ross dean came to that conclusion and the ninth circuit adopted her decision that was a district court opinion there was a just there was a district court opinion by judge or osteen which was appealed to the night circuit and the ninth circuit affirmed expressly on the basis of that coburg in the bankruptcy it was not mandatory joinder in to rule twenty which is a distinct issue which involves distinct policies the question with mandatory joinder necessary party under is the plaintive permitted to choose to sue only some but not all potential defendants that's the plaintiffs choice they can choose to pick who they want to sue and not sue others at the risk of race judicata some of the necessary party only if the plaintiff is prohibited from proceeding in the lawsuit unless they join the additional party so when either one club or was not in a certain party and they're not asking for the palace and i'm not trying to get a double recovery they're trying to be made whole under warn is that correct correct they had a partial recovery because of the defenses the claridge had to the case it was a compromise settlement and plaintiffs are seeking to obtain additional recovery of their damages from coburg so called dark subsidiary when in bankruptcy just charge their debts paid pennies on the dollar under warn and now call burke relies on that to keep from not they didn't have to go into dollar i just assume that because the suit against culver was to make them whole the difference between what they got in the bankruptcy judgment and what they were owed it was less than one hundred percent recovery yes and the basis playthings on the dollar  that is that's fair that is make all that's fair and the basis for the court's order approving the class action settlement was that the compromise settlement was fair and reasonable because of the defenses the claridge had asserted says well there was an argument here that the second defendant was in an indemnity or indemnity relationship with the defendant in the first case closely related closely related parties related to the underlying claim and on that thank you ron let me address the question of is the settlement agreement what defines the scope of the race to the cut affect the judgment and it is my understanding that as a general proposition that is generally the law in and in at least the circuits that your honor has identified i can't speak to the ninth circuit i don't have a recollection of that where that makes sense is where you're construing the scope of the judgment between the entities that were parties to the first lawsuit because they entered into that settlement agreement they should be bound by their agreement public policy doctrine behind this closely related parties to the underlying claim species of rescue to kata is to stop the plaintiffs from choosing making an election to split essentially a single cause of action into two pieces because of the impact on the judiciary and the potential for inconsistent results if we were to allow the agreement in the first case to govern whether that was permitted we would permit that's what into occurred any time because the defendant in the first case and even sued alone will always have an interest in selling out the potential second defendant in order to get to the settlement that they want to have in the first case so although i would agree with your honor that as a general proposition it makes sense that the agreed terms of a settlement define race judicata as between the parties to that settlement i do not my reasoning distinguishes those i am not aware of any decision that has held an individual or entity that was not a party to the first settlement to the terms of the first element  y with the express reservation theory which is the plaintiff's alternative theory for relying on the carve out of third parties quote unquote in the release there is not a single case that i'm aware of and then has been cited to this court in which a court has applied that theory to impose the terms that a court entered in the first case on a second party in the second case that was not a party to the first case i don't mean to to repeat what you said but you mentioned the davis case with davis right case davis rate case i'm just looking at your at the list of cases in your brief oh it was cited on our notice of supplemental authority oh i missed it and attached it there odd sorry i missed it thank you ron i also want to pick up on judge has a comment you made earlier about the plaintiff's ability to have added kohlberg as a defendant in the adversarial proceeding in bankruptcy there was twenty one months that expired from the filing of their original every complaint until the bankruptcy plan was approved in that case and point of argues the bankruptcy plan would have made it impossible for them to add kohlberg so there was over six months that expired from the time the point of said minute that their conclusion that they had a claim against kohlberg was quote cemented they haven't told us when they first concluded that a claim that it was at least cemented more than six months before the loss of bankruptcy authority i would submit that on the record before this court it is absolutely crystal clear that plenty of could have added a defendant had they not made a strategic election not to and for the reasons we cited in our papers that the bankruptcy court would have had both supplemental and ancillary jurisdiction which they would have retained after the confirmation the bankruptcy plan ok do you think counsel i think your time's up but if you have another sentence or two go it out i do not want to impose on the court's busy schedule thank you for your attention thank you for your argument we have  claim that the employees get in bankruptcy so that they can never really saddle for the full value of their claim outside of bankruptcy when they're in bankruptcy other course sort of looked at the closely purposes of russia cotta but i think fairness also dictates that if the parties are going to be treated as combined for the purpose of rest economy they have to also be treated as combine for purposes of the exceptions including the expressly defining the terms of the effect of the initial action the first circuit has a series of cases that deal with closely related that's correct your honor and the one of the cases i think that your eyes refer to is the  e systems versus raytheon case and that case there was an unincorporated division that was passed from one entity to another and the litigation was in each case aimed at the ac from three to raith there it was really the parent was really being sued to get at the actions of this division and the division was the same in both cases and that's the connection that