bannister the bank holding company your borrowed twenty million dollars and in two thousand and twelve our best bank came in decided to take over the branches that union bank had built in bannister's the holding company for union bank and there was a big problem standing in the way which was the obligation to repay the twenty million dollars under the various indentures and there in particular there was the sixth go back a few months before two thousand and twelve when the f the i c apparently assessed the hundred twenty million dollars cross lien against union bank assets with sabers were rattled they were talking about the tribes bringing a claim and then after that they signed the initial purchase agreement there was notice that they thought that the tribes holders thought that they had a claim and then they require it as part of it but that there's obviously something there from their perspective to come to that this was satisfiable that that they could get something out of bannister that was not part of what the decision in the district court was of cases you have to analyze in the district court did not do this you have to analyze the clause for what its purposes which is to make sure that there is an ability of the holder of that that to recover it conduct as long as there was a tortious as long as it was an interference with an existing contract improper motive is not a requirement and recently the missouri court of appeals reiterated that in the rail switching service case from november seventh two thousand and seventeen reiterated the law and true and clearly distinct and distinction and said where there's an existing contract where the defendant doesn't have a preexisting interest in that contract improper motives need not be established so the this is an add on deal that the regulators desperately wanted them to do and they they had and they had a they had a business they had a business reason they would like to they wanted to establish branches in missouri well they might want to do that one person was interested or one person said hey i will do that but we're not buying that piece of it but they did and they would walk away and in a liquidation with these creditors with the f d i c one hundred  million dollars cross collateralized position with the lien how would you guys ever get paid it was a take nothing deal to begin with but we don't know that they if they for example they could have filed for bankruptcy it could've been an option they could have gotten more million dollars claim i don't know in the at this that in the record i don't know it's not in the record but i would say that the point the second circuit in the n l case dealt with this very issue with the argentinean that where there was a complain that there was a hedge fund that had bought the debt it at the discount and argentina came in and said well there you know these are vultures who came in and bought of that at a deep discount and the second circuit said that's not a relevant factor when you're looking at the loan obligation where they bought the debt is irrelevant what we have here is a situation where we have a boilerplate clause that applies a nationwide is the sharon steelcase is the backup plan a case of the commentaries say these have to be applied uniformly and what has happened here what the district court ignored entirely was the purpose of you have a worthless piece of paper and they take it and oh guess what we know we don't we don't they didn't they didn't do business that wasn't there a transaction with with bannister sorry there wasn't a transaction w issues don't matter right i mean if there's a conclusion that the that the indenture wasn't breached then the other issues i mean there's no there's no tortious interference claiming there's no statute of limitations issue to address the main issue is whether if that's an issue that's actually decided or it's just picked up from the district court but then the invention of the district judge at the claim was barred by the statute of limitations so therefore that was the basis of which some people having sat there for twenty five years as a district judge either who's a state or federal district court judge a player that when you decide something on the statute of limitations and you can say that we're also going to lose on the merits the new dress the barretts because if the thing comes kicking back to you you're not having to go back whether it's a legal trick right and and whether it's a legal trick in the way we can answer that question is you look at what the purpose of the clauses the purpose of the clause is to make sure that there's assets to recover the loan to get to the purpose of  language so something differently i think that the that that the case law says that you look at the well the language itself isn't even clear talks about property with a lowercase p it doesn't define it and you have to look at what the purpose was of what this was in the first place and the property can people will leave you with it with a sheet of paper that's where the penny or what not that uncommon in the cases we see but the picture here is not that is not the  it's just not the law and they lied to the regulators in arkansas why what was the purpose of the of telling them that they talked to the trucks trustee the district judge said yeah look like they were trying to tell the arkansas regulators that the trucks just the it blessed the deal they lie to them that was just that was to get it to slide it through and get regulatory pool because the regulators were asking them during that meeting about this but very issue and so they said oh we talked to them and every the end they left and the as the district judge said regulating union bank that was the regulators in missouri so they go to arkansas and they say oh we talked to the tribes trustee they lied to them there was a purpose the law in the district court and the court it earlier arguments on s judgment addressed the standard and some didn't what was the purpose of the like a jury should decide why they lied there they knew these were experienced lawyers for and a very large bank who went into the regulators and misrepresented a fact the question of whether or not the provision was breached we share that argument and so our best bank will be taking all fifteen minutes allocated for the apple e's one no there are specific provisions of federal law that discuss and prescribe the trops and so there's no question about that issue and again that's governed by federal law specific provisions and to point one thing out of its bank moved for summary judgment on six separate and independent bases maybe we got a little greedy we w not rule on with it is within this court's power to affirm on that basis if it would like but just on that score judge loken your phrase hopelessly underwater perfectly captures the situation here in two thousand and nine three years before this deal closed a year and a half before arbus bank was even in the picture in two thousand and nine the f b i see issued a cease and desist order that prevented union bank from issuing any dividends upstream to its parent company banister into two thousand ten the federal reserve bank issued an order to bannister telling them they could no longer make payments on the trucks of course by that point bannister had already stopped making payments on the trucks they stopped making payments on the drops in two thousand and nine so the se curities were hopelessly underwater and that's not in dispute hill beans own analyst in charge of reviewing midwestern banks said the bank would not have made it another quarter the federal reserve bank of kansas city said this bank was not going to survive it hill beans expert has said it that absent some transaction this bank was not going to make it out of two thousand and twelve and so while there are many many legal issues that are interesting in this case ultimately it is a bit of an academic exercise because hill dean was did not reach the issue of whether or not building or its ass nor u s bank was damaged so that issue if if god forbid we end up back in the district court that issue is still to be litigated there although again this court can affirm on that basis but the point is hilde the neither hildy nor u s bank was ever going to get paid and that was going to happen long before our best bank got involved now ben your question was also the right ultimately this first basis for s judgment whether or not there was a breach of the successor or provision which is the fundamental question here it is the most important most basic and we think most great for question ultimately it does come down to the question of how do we define the term company subsidiaries one of which was union bank also the indenture separately defined subsidiaries so to resolve any doubt about how crystal clear the definition of company is the indenture also separately defined subsidiaries provisions of the indenture including section three point one including a provision in article fourteen governing assignments specifically capture behavior of its subsidiary and does are gonna you've got also look at the word property your honor unambiguous language that language should be given its ordinary meaning it should be construed according to its ordinary meaning and we would under missouri law counsel is that you don't get property under missouri law what governs the the term rather the that that would be under leave that this is a contract it's doesn't exist in the outer space for this particular case the question of what property means you know to the extent that is a question would be governed by new york law because your potential contains a new york choice of law although the point i was trying to make judgment and i apologize with that the principle is the same in new york law and in missouri that when words are plain when contractual provisions are plain and unambiguous we give them their ordinary meaning of the term property judge logan is a well understood term in the law we know what the property of the company is what the property a banister is in this case the property of bannister was the shares in union bank it was its ownership interest in union bank banisters property under any common and ordinary ordinary understanding of that term did not include for example the a t m in the union bank branch down the road from here that is property of union bank the only property that belonged to bannister was the shares of union bank those were not sold to arbus bank arbus bank only transacted with the union bank here this was undisputedly an asset purchase agreement so while he'll be in does argue that the phrase property is ambiguous we submit that the district court properly said that no it's not we property have every side in new york case on that the reason i retreated to missouri is merton's very often does define a simple word like property in case law oh i says yes tangible intangible and mixed correct a specific definition of property in new york law was not cited below but but that definition is is an appropriate one the one that you've just cited although we don't we don't have there are no there are no cases in the record defining property and i was trying to be cute i understand look at new need to rewrite this contract so that it's plain terms the property of the company then becomes the property of the company and its subsidiary in the district court expressly chose not to do so it was correct not to do so and one point we have heard from that there is some purpose beyond the language something special about indentures or successor provisions that is disputed by a number of things including the american bar associations commentaries on model the benchers which are in the record in which say when you are an issue or and you are entering into an indentured to issue securities if you want a successor provision to reach the assets of a subsidiary you write the word subsidiary and it provides a sample covenant sample covenant five new york has not adopted the commentaries but second circuit cases have recognized that they are powerful evidence of the expectation knowing circuit that i bet i don't know if there is a circuit law but this is a question under new york law and the bank atlantic case which building has been citing for years applies new york law at the delaware chancery court case but it's applying new york law and bank in atlantic says yes under new york law we looked at the commentaries for evidence of what market participants would have thought and the  commentary say if you want to reach the assets of a subsidiary use the word subsidiary and that is because market participants people with any familiarity with jurors american jurisprudence understand that it word company especially here when it is highly defined does not include the assets of a subsidiary but i would point out to this issue of higher purpose the district court correctly chose not to consider that because it started and ended its analysis with the plain language of have purchased the assets of union bank the bank would have failed the f d i c would have lost money the depositors would have lost money and jobs would have been lost and so the omission a lot of other intervening events didn't happen we have bank commissioners in both states bank right you write your seemingly worst case scenario there i may be assuming that your honor but we know for example that the f b i see made crystal clear to the parties in october of two thousand and eleven that something must happen here or this bank is going to fail the federal the federal reserve bank of kansas city in two thousand and twelve feb two thousand and twelve said there are serious questions about union bank's long pork long term viability as a going concern so i may be making slight banks expert anthony santa mero who was a former chairman of the philadelphia fed at that page fourteen sixty seven of the appendix talked about this the f b i see preferred asset purchase agreements if they can happen about ninety percent of bank failure cases actually tries to get an asset purchase agreement because it is the best thing for the entities it's regulating and again perhaps making an assumption it's the best thing for our economy and so the reason one reason the successor  not have included the word subsidiary is precisely to allow this transaction to happen because it would not have otherwise and so alternately to find for hildy in would require a rewriting of the contract and the district court correctly chose not to do  that it should be affirmed on that base because if i may just on the question of improper means to two points we submitted eight twenty eight j letter and again to reiterate these are three separate and independent bases for summary judgment these were clearly not dick to the district court granted summary judgment on three separate and independent bases but we submitted a twenty eight j letter to this point last week in december of last year two thousand and seventeen this court issued an opinion intention envelope which made clear that judge logan authored in the others first verse b b b case which was decided in two thousand and sixteen and both of those cases make clear that an economic interest and economic interest is a sufficient justification such that torture is liable torches interference liability can only be imposed if improper means were used and here the district court held at pages fourteen to fifteen of its opinion that r v s bank did have a legitimate economic interest in this transaction it had a legitimate economic interest in establishing a banking presence on the cans on the missouri side of the can on the on the missouri side of the kansas and missouri border and so it had a legitimate economic interest and so in light of that finding and in light of this co intention envelope and others first hildy must prove and plead improper means in order to impose liability on our best bank now throughout this case there have been accusations that not our firm a different firm lied to the regulators we would invite the court as part of its to novo review as the district court did to review the entirety of the transcript before the arkansas state bank department which is  in pages seventeen eighty five to eighty nine of the record the specific portion from which building excerpts a single sentence is that pages eighteen no one to eighteen zero five the idea that somehow first of all the statements that was in response to a question a commissioner asked based on letters that had received from hill the building submitted to letter to the arkansas state bank department in which they laid out just as how they have done here how this was a slight of hand transaction it was unfair to the tr holders it must not go through the arkansas state big department had the total mix of information it needed and so there was no misrepresentation and it was not material in any event our best bank appreciates the court's consideration thank you thank you asset something that was going to cause them fifteen million dollars maybe take a decade to build up and they came then they used their their very strong bargaining power to come in here they they they induced people with  bonuses other compensation to come over and be indentured so they realized was the big problem and they tried to find a way around it and when they went to the regulators i invite you to read it because they've come up with a completely nonsensical explanation of what they meant during the course of that they didn't come in and say that was a mistake in the transcript or something else that they never want to correct that they said what they said for a reason which was to as judge smith said it could be construed as saying that the trops administrator of the u s bank had blessed the deal and that grease the wheels for this to occur here if there was some issue maybe the regulators would have said well maybe you ought to give these guys some money maybe there should be concerned consideration maybe further discussion here if u s bank isn't agreeing to it but that never happened they were led to believe it was all signed off on by the ministry of her and they moved on so the and the caseload the detention case that was was cited last week and we filed a response letter but the the issue of the economic interest that was not an argument the tension argued in that case they only argued improper means in that case and the court and this court said there were no improper means law is a little bit unclear on this particular point and that and the rails in case said you have to take of a look between existing contracts and business expectancies and where the existing contracts improper means are not required in those