misleading disclosures don't turn on the same thing which would be that your clients were minority shareholders before the march two thousand transactions in after the transaction they couldn't have exercised any influence over the vote to approve the train's action before and they couldn't  control they didn't have control but that doesn't mean that the majority shareholders didn't violate the for douche every duties that's the whole purpose of the law of the do sherry duties is to protect the minority shareholders if a minority had an ability to influence the transaction at all then it wouldn't have to go to court because they were mistreated they could have just voted against the transaction that's that's the entire reason we're here that's the entire reason why delaware gives shareholders fiduciary duty smith an individual corporation well delaware laws currently states that when a you have to love the courts to now to look at who's been harmed in the transaction and who would get the recovery kind from the motion but that's how they were treated unfairly that's also a direct claim because the premium the put that was given to cox and comcast had nothing again had nothing to do with a corporation it had no effect on the corporation certain shareholders in this chain of control trans are in this transaction certain shareholders we're giving we're treated differently than other shareholders if this was a case where every shareholder was treated the same then we probably wouldn't have a cause of that's hard for me to see what damage how they're damaged if a b and c collectively have total control and the minority shareholders don't have any control then why does it matter if to all the shareholders but the question is whether if they breached that duty if there's a derivative claim or in that or a direct claim that one of the things that would be a direct claim in my view is if there's a misleading perspective and in the juice this individual shareholders to hold their stock and not sell out is there a claim like that in the complaint there's not a claim like that in the complaint and we would client should have been entitled to amend their complaint to assert that claim if it wasn't of service will we i believe we should be allowed to amend that claim to the causes of action any type of direct cause of even under delaware law that is a misleading disclosure the plaintiffs are entitled to at least nominal damages there's over three hundred thousand shareholders who are are not going to get anything in this from the bankruptcy and there's over three hundred million content well i don't think the bondholders recently filed a suit against cox and comcast this bankruptcy order came out in september of two thousand and two they've had over three years to litigate a case against c and comcast whether or not there's interference i believe that arguments waive with latches because they waited three years to bring their claim and furthermore there's just simply no case law that states that interference is a reason to not allow drug cases to go forward even the case of looked and the facts of leptin all the votes in court said was a direct case that reserves can sell a drug shareholder can settle their causes of action if they reserve the derivative claims for people to bring comcast for the court to say that b interference there was no complaint filed at the time in front of the bankruptcy court where into fairness could be shown there was no complaint against a t n t and there was no complaint against cox and comcast by the bondholders such a complaint didn't exist so i don't it was just inconceivable how the court could find interference on the scale of the courts language was somewhat imprecise this to whether the court was saying that there were some direct claims but they interfered with the bondholders sued or whether the court was saying there aren't any directly i think there was some confusion on that issue it's our position that th were a direct claims the claims that shareholders had their stock to lose or a direct claims what what the the bankruptcy court did is they said there's no substantial damages that are different from anything else that's not what the bankruptcy court should be shareholders should bring that whether whether or not somewhere down the road that plaintiffs can't prove their damage claim that's a different that's a completely different issue and that's exactly what the bankruptcy court is doing in this case the bankruptcy court said you may have prosecution of direct stays the prosecution of correct yes your honor there's a there's a ninth circuit case that we we cited that states that a permanent injunction monetary value of your claim you threw a claim that's a very that's a very good question your honor if the nominal damages of one dollar per share were allowed for just the for just shareholder rights the nominal damages or would it only give shareholders a right to damages if they had kept their stock and not you know until the late selling because of misleading statement selling while the markets heading downward i guess they have some loss from that yes sure i want that of course you're here representing all the shareholders so i don't know how you can if you can deal with or how you deal with that question which may relate to some shareholders having a right that others know we believe the shareholders rights in this case were right for when the the to march two thousand transaction one forward in march two thousand like a reserve my customers are to take seventeen minutes and mr hockett is going to take the last three minutes we're going to be splitting our time to trot it represents one thousand nine hundred well i'd like to start briefly is on the standard of review which i think is is important in this case we think on abuse of discretion standard should be applied let me tell you why this is not a case where the determination below is merely whether the automatic  stay of the bankruptcy of clyde to certain claims but rather the automatic stay had already been in place and the order putting in place the automatic stay with respect to this  the legal standard even under an abuse of discretion standard to the extent you believe that the legal standard that's been applied is wrong that that would be grounds to say that something terrible was an abuse of discretion i think that's right  but there were factual findings that the bankruptcy court made and the other thing is the bankruptcy court in this case can a very unique position because he had lived with this case for a year he knew very well what the claims were because they were made in the bankruptcy and they were discussed in the bankruptcy process against cox comcast an eighteen tese of the bankruptcy judge was in a unique position to be able to assess whether the claims that would be asserted as part of the it seriously whether it's correct whether can be correct as a matter of federal law that a bankruptcy court can enjoying a direct claim of somebody because it might interfere with the claimant in the bankruptcy proceeding well and that's why i think the standard that you have here is important because what happened is that you have a complaint that's filed the complaint on file in the  that that by the way is is a is an order that's not being appealed of from the order is an august twelfth order that's an entry twenty five eighteen in the record and listed in volume two of the excerpts of record in page five seventy eight and the importance there is that has not been appealed so the automatic stay hasn't been applied at crackly not appeal to that action now the question is should the plaintiffs have the opportunity to amend that complaint now a many complaints is always in the discretion but this is even more so given that you have a bankruptcy judge that has lived through the bankruptcy and is and the deference that's given to a bankruptcy judge an abuse of discretion standard is exactly the type of deference you should give aspect of whether you can stay in action in the first place this is a question of whether they can be allowed to an amended complaint in that action in other words the action is being state and that was not appeal from  state derivative claims and number two that there were factual findings that can only be disturbed that the bankruptcy judge made on a clearly erroneous standard and if you look at the factual findings that were made and you apply that standard it's pretty clear that these claims are direct the to the to state the two factual findings that i point out one of which i think your honor had correctly talked about was that there was nothing that this minority shareholder group could do that could affect the vote they were a minority before they were a minority after there was nothing they could do to affect the vote they had no power there are a number of cases that we still have the same idea that the idea that the fact that you're deluded has not mean you have an individual crane if in fact what what happened here was you had a transaction where the company that i took my shares away and i didn't sell them and i would have otherwise sold them and meanwhile the market crash while i held my share or why why wouldn't  minority shareholders and i guess there are three hundred thousand of them or so why would they have claims if they were misleading statements made material missions and prospectus relating to this shift of think the fritz case requires there be some kind of pretty solid it's not clear whether you'd be able to get a class action but it's not this case it's a different case and i would point out the one the one comment that the appellant made here is that the shareholders  were not going to receive anything if they are not allowed to prosecute these claims there are shareholder actions outstanding against eighteen costs and contest relating to the buying and selling of shares securities fraud cases out in new york the laking cases is why i think that was was cited in one of the briefs but the point being that we have not gone and tried to say all claims against the shareholders what we've done is taken the claims that relate to the march two thousand transaction and i think the important part of that transaction it was a transaction where at home was on the one hand and the controlling shareholders us contacts and the kids here on the other and it was one intertwined transaction and the sole issue there is did the corporation which was a party to the transaction get enough consideration for all of the things that eighteen and he cautioned comcast got whether it's an increase in the number of  fair value for it and it doesn't affect the vote and that was the point that was made here there is no harm to the shareholders because the shareholders a minority shareholders could not affect this vote the so question in terms of all that transaction in the two thousand transaction was whether the company was properly an adequately compensated by virtue of being a party and having a teensy coxon contacts getting what was really a bundle of goodies do you want to s in the majority and then becoming the minority there's no transfer of control and there's no transfer of control a sense that the minority stockholders were the minority before the minority after there's nothing that prevents majority stockholders from transferring their majority interest without paying the minority but and here's the big but in the march two thousand transaction at home was a necessary party at home had to amend its charter at home had to give and comcast certain contractual rights or they weren't going to sell their stock to eighteen c the point is should at home have been compensated for facilitating that transaction if you look at the four case taste that the company needs to get compensated it's not the individuals it's a hump anie claim and that's really at the heart of what we're saying i'd like to take a second to deal with the disclosure claim which is being made and i think there was some question of whether you can have a what if you have a disclosure claim a disclosure claim has nominal damages there's two huge disclosure klang the fact is there is one allegation in the amended complaint of something which they say was not disclosed to the shareholders one out of seventy three and in that in that claim all they say is that cox and contact didn't say to the public shareholders that they were going to leave that home as customers they misled asshole now if comcast were going to lead our home at home was the entity that was going to be harmed and there's a coast to a case again which i think is the delaware standard which is and i'll also leave this with with the clerk which is the j p morgan case that was decided earlier this year and in that case you have the same situation you had a disclosure in a proxy a court found that you have to look at the underlying claim if the underlying claim would have given rise to a company suit their disclosure claim can't bootstrap something different in other words that's the same thing here if cox and comcast wide about leaving at home it was a home that was going to suffer the harm and that home is the one that should get the benefit that's the company derivative issue and we adopt that argument as our own second i would like to say that if the court disagrees and were to allow the san mateo plaintiffs action to be restarted the heart or would lie at the heart of the same a tale of state court litigation and the litigation that the bondholders have now instituted against cox and comcast and indeed it might be the case that cox and comcast would need to be necessary to ensure that at home shareholders would receive the maximum value realizable for their shares in any change of control involving the company so the situation that we have is in the same material case were allowed to proceed that is if the direct versus derivative argument were not to carry the day you'd have a claim against a t and t that it essentially paid a change of control premium for the wrong parties to cox  comcast when it should have been paid to the shareholders if that is the issue then cox and comcast may need to be there because they were the ones who received the  civil procedure for a forgot one which allows consolidation in circumstances in which there are predominating and significant questions of fact or law common to both sets of claims so i think that's an admission that there is a strong relationship between these two washrooms with regard to this question judge gould about whether there is authority for enjoining prosecution of actions which may interfere with actions that are under the control of the bankruptcy court we cited a couple of those cases in our brief an eighteen teams brief they are wowser its charms manville an american film all of which  stands for the proposition that a bankruptcy court may properly enjoin actions by or against non debtors if they would interfere with the administration of the estate lets the court has anything further thank you your honor to respond it's not really true that the plaintiffs couldn't take any action whatsoever plaintiffs could have went if they had complete full honest disclosure so they could have went to a court of equity and enjoying this transaction and that's another reason why they were hired even though they didn't have the voting control to effectively block the transaction they did have there was things that they could do furthermore the  concerning the cases where the courts had stayed to creditor versus creditor actions those cases are all chapter eleven reorganization cases there's not a single one that's a liquidation case like this case and try to remove all the derivative causes of action and alleged direct cause of action and it seems what's going on is that the court below found that there were a direct cause of action but said there's no substantial damages of the damages are so very intertwined once the court found that those with direct causes of action we should have brought those causes of action what you have now if this case is permanently stayed my client's case to permit the state you're going to have the bondholders