language right when we're well familiar mr mark with with what kind of case it is and on friday it appears that the bankruptcy court rendered a ruling yes what if any impact does that have on what's going on here you want what divested did she really say that were paid she say i'm not going to touch this because it's a it's in front of the court of appeals it's now one of two courts at the same time the defendants are responsible for maneuvering this case in a manner that's put it in front of two courts at the same time and i'm not going to touch it that's how little with camille like maybe she was saying not so much i cannot but i won't i think that there's some of both and what your honor is just said judge jordan and that she looked at the differing causes of baksh and and determine that there were potentially certain causes of action that had been inserted rows under the bankruptcy with right here the sort of the central issue seems to be these causes of action are not ones that could those chosen actually could never rightly have been transferred because they're ones that trust trust bankruptcy court said i'm not the best but i'm not going to play this game i'm not going to well i'm not going to weigh in while you put the same thing in for the work yet with the court was saying the point i'm trying to make that she's saying that with respect to some causes of action one two and three in the complaint assert fraudulent transfer causes of action under state law through five thirty four beat and i i did read her decision to say that with respect to those she was divest of jurisdiction and that she would then use her discretion with respect to other causes of action that did not arise under those provisions of the bankruptcy code and use that discretion to also divest yourself of jurisdiction pending this court's decision well we have  poke they knew they weren't going to get to work in the bag because it was sold as is where is with all rights reserved and if it turns out that the pocus empty they've got nobody to blame but themselves they still own the poke whether there's a pig in it or not so tough for them it doesn't affect the validity of the sale that's that's what i understand you to be arguing in my correct yes ok well somehow if that's the truth how can you  i want it to address for just basic contract law isn't it just basic contract law that if the central point of an agreement is frustrated were made legally impossible that undermines the validity of the contract there is no longer a contract i accept that is a general principle of contract going yes ok and so if it is the case that somebody were to rule that these could not be transferred because the trustee and the trust you know rome can pursue them does that not undermine and speak directly to the validity of the contract that sold those cause of action is the greater scheme how could we rule that way and not have it addressed the validity of the sale given the general principle contract all we've agreed yeah and i would say that because i would submit that the purpose of the contract was not frustrated because initially the issue about whether they could even proceed as they did was raised within days of the trustee following a motion  transfer the causes of action many issues were presented to the court at the same hearing and so they had knowledge that they were buying a risk and that is a matter of contract law so our view takes up to that risk and perhaps although trustee the very reason the as it is whereas with no representations was put into the contract was such that if as a matter of contract law he bargain that they thought they were buying did not pan out they would have risk and they elected to close and as a result the court can rule that the assets conveyed could not have been properly conveyed without frustrating the expectations of the parties and therefore without undermining the order additionally we shoot your assertion depends on our accepting that but they bought was a risk not what they bought was an asset right because if they bought if they what they thought they were buying were causes of action then don't you have to acknowledge that if they've got no cause of action they do nothing well not exactly because there was a release for the reed smith raw farm and one hundred eighty thousand dollars it was paid  if they thought they were buying something worthless that's that's an error on the district court's part on appeal yes i would agree with that and i would also submit and we said in our briefing that there was no evidence regarding that reliance i think when  these for litigation strategy purposes to have an alternate form to hedge their bets with respect to other litigation that they're already pursuing asserting many of these very similar claims if not identical claims against the same defendants  court acknowledged our objection by putting a provision in the order that reserved the right to us to challenge standing in jurisdiction in the future and i would respectfully submit that the way judge and the way the district court looked at that was that he would bet as only permitting us to raise that challenge and if your trial court we believe it also allows us to raise it and the appellate court the language is quite broad and in fact it's me argument is that we can't raise it on appeal but we can raise in the trial court the logical extension of that is is that i can get to this appellate court some point in the future on the very very exact same issue that i'm arguing today so our view is that we reserve that right judge the bank of scotland could nies that we had sought it rather than litigating issue she gave us that right to reserve and we appealed it when you see to seek a stay when you say we didn't need to seek a stay what how do you deal with the language of the statute which says you need to seek a stay well number one to waste the first is the one we've been discussing that i think the court can enter relief without changing the terms of the order because you would be giving them what they bargained for but secondly section three sixty three m says that the court the appeal would be moot if it relates to a sale under subsection b subsection b says and three sixty three the lower court may only preserve arguments sorry they only approve a sale of property of the estate section five forty one governs what is property to be a state and indeed our briefing argues vigorously that address the merits and know whether the stay applies that seems to be sort of turning the statute on its head i thought the purpose of three sixty three m was to give a finality to these sorts of things so he wouldn't be  dealing with them in a setting like this and if you wanted to preserve your rights you knew how to do it and that was to get a stay i mean isn't that why i think i think you can take certain steps and you can freeze things and place and then court in certain of its cases would follow that but in this case we preserved our right to assert this and we carved out in the order of the trial court the right to challenge this and while i regret that we didn't have this decision in our briefing we did last night as we were preparing moving find a tenth circuit case essentially said when you preserve preserve the right to proceed on a challenge and a party closes over the risk that you would proceed on that challenge but the appeal is not moot because the party otherwise protected from that is aware that it's at risk and i'd be happy to submit that on the twenty j letter it's not a new decision but it is something that unfortunately we've fallen into last night as we were we'll have you back on essence which is you know you knew what was going on here because we reserve all rights in the bankruptcy court in the city order itself and you got no basis or i think there's a procedural and a substantive point to that and procedurally first i actually don't think they preserve their right to appeal to the district court in the third circuit what i believe they did which i think is reinforced by the bankruptcy courts there's none friday is they reserve their right to raise whatever defenses they would have including to standing when an adversary proceeding was filed that's what i think the bankruptcy court was expecting and that's  reservation of rights that's provided for in the sale order and interesting way of i think the court knows because of the stay application what happened was they actually didn't raise this argument to the bankruptcy court on the motion to dismiss that they proceeding instead they only raised on a direct appeal up to the district court and then subsequently after the district court ruled against them they then tried to swap and they had initially asked the bankruptcy court to stay the action or dismiss it pending the resolution at the district court the district court went the other way and then they tried to get the third circuit to stay it come from placement of this whole issue to try to take a run at the bankruptcy court so now we actually do have two proceedings happening at the same time so what do we make then of the statement the bankruptcy courts decision friday that any ruling on the motion just as well not through remortgaged the sale or those defenses were specifically cylinder and so ruling when those defenses could as in forcing the seal the border i recall that statement and i'm actually not one hundred percent sure what the bankruptcy court had in mind there although to some extent i thought she was saying because of other statements in her opinion that they had adequately preserve their right to raise this substantive issue the merits issue to her in response a motion to dismiss although she acknowledges i think that they did not and then on the substantive point the pick in the poke argument you know that were sort of no no problem because we knew we were getting into i think there are two issues frankly at least half actions themselves and the right to bring the cause of action so i think it would entirely undermine invalidate the sale to go the other way on this issue but also i think it's important to note that this is not some crazy new found theory where we were buying thinking well what the heck we have absolutely no idea if there's any legal merit to this but let's take a stab you know pick a straw we believe particularly in this thirty third circuit under point which is work this has to be so collateral whatever it is you're talking about that that the question they're putting in front of you in this instance third circuit is not you know it's it can be disposed of because it doesn't it doesn't really address the central there was another statement and i think informs the statement that judge cross referenced where she wasn't sure whether the district court in the third circuit had this issue properly before that she might certainly identify this for herself  urge a per se standard i know that's not the standard within the third circuit it is something less then than that but argument is really where it's a central element and here we would say it is the central element that actually does create statutory mess i will mention first time sure and i want to make sure this gets out there we already were talking about but we're not actually opposed to the court reaching the merits should the court decide that that is appropriate and that you have the power to do it in light of the fact that it's now been fully briefed you've all prepared for it we've all been very poor and it's inevitably going to come back to this core so from room to to actually reach this issue because for example if you were going to confirm our understanding of the state of the law it wouldn't invalidate the sale order you know if you think there's a way to stay then i think they could have attempted to directly appeal and then at that point the district court could have determined they the first would have been satisfied and the district court could then have determined whether a willing on the merits would have invalidated the seller but given that there wasn't a stay and you know we think they can't that is by the second prong you know we don't have sort of it's not the same set up but i would just point out that creditor group that actually purchased the claim that a person in the claims so certainly as to four of the five creditors and i believe it's true the fifth but i'm not one hundred percent certain that that was that nothing to do with us they say  that those other parties didn't think these claims were worth anything how can you trust that that's really the central this deal there are looking for just a chance to pursue litigation not with an eye toward actually winning something but keeping the ball going that's kind of how i read that footnote twenty if you remember what you were what's your response that you this goes back to the pig in a poke you didn't really buy this thinking you could have value that did nothing to us we would have paid no value and paid no value for that what we are in this sale agreement for is the ability to prosecute the claims and try to get them back into the estate and in know that comes up throughout the briefing now just to point out what's going on here is that the debtor owed millions of dollars to investors including a five million dollar more within just a final judgment by a new york court that's not on appeal it's a final judgment and has never been paid and so rather than paying the amounts the dead are filed chapter seven bankruptcy and what the bankruptcy court and we have it at the same time it went with this record that said i'm not touching that does it indicate that there's a problem with having this second prong in the test so in other without necessarily getting pulled into the discussion the merits which about really the sub records having been given it have decided it really rather not do i hear your honor i will knowledge i have not fully analyzed the pros and cons of the different approaches and i'm aware that there are at least two different approaches and i suppose i would say i can imagine a situation where there was an attempt to appeal a final word or that really went to a very peripheral issues let's say there was a final order that addressed four issues three of them were absolute central there was one that was a very small component you know perhaps in that instance if there was peripheral there would be the ability then to appeal that issue i can't think of a concrete example but it doesn't seem impossible to me that there would be reason there would be a reason for that and i presume that the third circuit analyzed the issue and felt that the other approach was to have a had it reasons first is a bankruptcy moves fast quickly and often times there is a limited ability for a bankruptcy court can fully express and review situations to the economics and role and in fact this court and similar settings a case which is the decision of the court and that we cited i think it's from two thousand and fifteen the court also recognized the need for the ability of the court to have recourse to investigating situations where it's appropriate  and where it can do so in an appropriate fashion and we submit that that is one of these cases final policy reason for that i think was revealed in this court's recent decision in the rebel case where in fact a party didn't move for a stay pending appeal of the sale of the rebel casino i think judge kraus was on that panel and the concern was that it was so difficult to get a stay pending appeal that the court in fact relaxed the standards and focused on the first two prongs the she was now pending as cause confusion in multiple courts and has been presented for it in two different forums for court to decide these issues for the very first time yet it and one point i would denied so we can went back to the bankruptcy court and she had an argument and we briefed on the issues and we made the argument i think we to clarify what i think you asked me at the very beginning of our argument on the other aspects of our motion to dismiss for example we moved to dismiss because the partnership agreement at issue here has an arbitration clause so we advocated at the last hearing in front of her that she could still rule on the arbor take on the arbitration clause jurisdiction so i certainly would have preferred as counsel with a client that has to pay probably just on we have this in front of one court unfortunately we find ourselves where we are now what i've heard is essentially a waiver of the three sixty three m right from the podium today saying that that to the extent that the court thinks that it's not allowed to hear it that they would actually prefer this court to get it i think that constitutes a waiver of the right