were industry y accepted practices that would reduce the amount and yet they never conducted that type of analysis they simply put their evidence on the table and  even a twelve month period you find that significant amounts are owed coming the other way so i think that to answer the court's initial question there is more than enough evidence that the entire claim was in dispute i think one has to distinguish this case from the cases that have been decided by the petitioning creditors where it is possible to take the total pointing and to break it if that's even burden of proof on their motion presumably judgement and in response to that i think that the evidence that focused to do's was more than sufficient i can i go back to the type of evidence that was held  counsel for focus media it was argued that witness was prescient about it and the bankruptcy court made a specific finding of fact in her finding a patent and conclusions of law on that point so again i think that was clearly c holding company i think it's helpful to lay out the timeline here so that the arguments can be dealt with in the proper order the involuntary petition was filed in october of two thousand quite a long time ago and the judge march ruled on summary judgment that seven of the eight petition creditors had claims that were valid and they were proper petitioning creditors and that took place in august of two thousand and one so the question on appeal and a here is limited to whatever arguments were made on the summary judgment not arguments that someone may have thought of three years later that were never presented to a judge it's not that kind of a process you look to where things were as of two thousand and had nine months to do the post analysis and they didn't do it and their statements on the record when there were proceeding to stay the course where mr rubin says we didn't do the post analysis and then there was another period of time in the bankruptcy court until we got to october of two thousand and one so there were twenty months between the end of one nine hundred ninety nine and summary judgment you know for focus media to do the post analysis and in their briefs before this court and even today they say they didn't do it they are not able to point to evidence where they did post analysis to show the stats are no and i think that's the end of the story i had a law school professor that said he thought my generation would die with his options open i think we'll all die with focus not having completed the post analysis they had plenty of time to do the post analysis they had plenty of discovery in the bankruptcy court and they had nothing to show to dispute the deaths of  there isn't post analysis in the industry and we're not saying that it doesn't sometimes happen but what we're saying is that there's no evidence in the record to show that this was a common practice with respect to these petitioning creditors or any of the thousand television stations if there was they would have been able to say look we made an adjustment of ten percent in december of ninety nine minutes just in a five percent in november of ninety nine we made an adjustment of three percent in october of ninety nine we can show we would have made those adjustments through and there were witnesses from a b c and there were witnesses from focus and they had every opportunity to spew the a b c bills and they couldn't and they were findings after the bankruptcy court and they're not those findings are not really challenged they were challenged before judge doppler and they're impossible for us to go forward there's been a great injustice done you should tell judge march that you should not have appointed the interim trustee so they had their avenues of appeal to try and get that on done and to pay back control of the company and they didn't they didn't pay them and so in their brief here they say my gosh what an injustice was done when she appointed interim trustee in october of two thousand well it's a little late to start talking about that secondly judge marge did not accept those arguments when she did not agree with their assessment their excuse if you will for why they couldn't do their job as lawyers and the excuse always was well the petition creditors aren't cooperating trustee isn't cooperating and it just wasn't accurate there were many hearings in the court below where the trustee came before the court and he gave access to all parties for various records and i think it's in the record here in the discussion on the whole discovery sanctions issue that focus delivered over nine hundred boxes of documents to our offices in response to judge march's request that they do so so they went to the trustees location they took the records out of the trustees facility and they brought them to to our office as part of the production so they had full access to all the documents it's not a a fair charge if you will to say it's all the tr fault and therefore now in two thousand and four the entry of the order for relief somehow be disturbed in october two thousand from october of two thousand and one i this came up in the district court they rely on the south and declaration if you read the sultan declaration what he says is after all the work that he did he is able to say that one ad ran three minutes late and another ad ran five minutes early that says that this evidence of a dispute over these deaths is clearly not sufficient to justify any finding that there was a phone and by just a few i would like to address  two other issues one is one of the counsel argued both the creditor's overburden or would've been food for the allegation or the statement that there are in dispute to show that there's enough to meet evidence unique to involuntary bankruptcy law that there were admissions over and over again by the debtor that the amounts were to the media there wasn't an argument that the amounts were not owed to the media they said that over and over again in state court they said in the bankruptcy court and they said it under oath they said we owe the media for the amount of money that we collected from sears for the ad so i think that those admissions and  which are sworn statements from the fishing predators as to the amounts of so i think in the context of at trial we obviously had a witness who came forward and explained in detail what went through all the invoices and the judge m findings from the trunk trial testimony but it's summary judgment all we had to do was shift the burden to them on the cell effect standard to say what evidence do you have that these amounts are no given that you've admitted  repeatedly that you owe the money and given that your age payables records show that you owe them money and they were unable to come up with anything to dispute it and especially they concede that they were unable to come up with anything and they blame the trustee for it and they blamed just the creditors for it and they blamed judge  s for it but if that's all you had to do to oppose a summary judgment motion was find some excuse why you didn't have the evidence then everyone would have that argument there never would be summary judgment and here you have the unique circumstance where after the summary judgment there was timeline it's now two thousand and four and there have been many many proceedings in the bankruptcy court since the entry for the order for release in october of two thousand and one there have been settlements there been watches filed there been pla abandoned and the activity in the bankruptcy court was significant because what's been ordered for relief was entered in october of two thousand and one the clock started ticking on two different to your statutes of claims against a variety of people and he did that and he got to october of two thousand and three and he filed a notice and he said i'm going to abandon the remaining climbs so it's it's hard to fathom how one could on do all the things that have happened in the bankruptcy court since since the case was filed in two thousand and where this would leave people who have settled with the trustee people who have judgments against them because the trustee has pursued them  people this is the kind of order that could be stayed pending appeal absolutely and the case law on this issue says that if you don't ask for a state ending appeal that's when these kinds of movements arguments kick in and i don't i don't quite fathom how this would work let's say you accepted for example focuses argument that judge mark should have recused herself and that  tried by a different judge and we went back to the bankruptcy court and we were in front of judge the result where would we be we would then have a new judge we'd start all over again i guess the trustee would become the interim trustee again i don't know what would happen to all the actions that the trustee has filed i don't know what would happen to all the settlements the trustee is entered into it would be amassed and what what the stern says in other bankruptcy cases is that sometimes you can look at a situation and say it's just too much time has passed we can't time to do all that's been done the bankruptcy court and we will fine fine the appeal moot you could do that here without any concern that they didn't have their day in court they did have their appeal before judge sautner without any concern if they moved things quickly they asked for delays in this appeal they never asked for a stay what would be the purpose of the creditors the prejudice the creditors to go back would be immense because america and we would certainly find the people to show that the deaths were due i think the more important point is what happens to all of the things that happened in the bankruptcy court i presume they would argue if you went back to the bankruptcy court for a trial on the merits on the seven petitioning creditors they would argue some of those settlements are valid there was no they didn't seek to say stay the entries the settlement so money that came into the state from insurance companies or from third part there you have the pending case against mr reubens it still remains in the bankruptcy court and may be tried in bankruptcy court what happens to that if you go back you have to kind of stop the trustee in its tracks and say  stop prosecuting claims against people they might be dissipating assets today those those claims may be gone so i think there's a practical aspect of this that says how we view and do what's happened over the last two years and i think that argues that if you want to appeal to involuntary petition you better ask for stay and you better seek expedition and rule one zero one three a says that these are these cases are supposed to be decided at the earliest practica involuntary proceeding or not so i think that even if you look at the documents that they have asked their take judicial notice of the tentative settlement between the trustee and mr rubin and you look at that and what that contemplates is that mr rubin will return millions of dollars to focus for the stay and that the state will assign certain claims to him that he can then pursue what happened to that tentative settlement if it ever becomes a real settlement if if you go back and in fact when the sole shareholder of the company goes into bankruptcy court and says i i'd like to settle the claims of the trustee against me and i'd like the court to be part of the settlement process i think that that point they're essentially consenting for the entry of the order for relief and that it's inevitable for them to still be arguing that it somehow before should somehow be set aside so i think on the mo this point it's my job to raise all of these questions it's their job to say how can you on do things now that so much time has passed including the passage of various statutes of limitations  before judge doppler that mr reubens admission that he paid the bills within ninety days and his admission that there were debts there were over ninety days old means that they weren't paying their debts as they became do and they owed the money the petitioning creditors there's nothing in the declarations of mr rubin that he submitted in state court about the ninety day issue that says anything about not having to make the payment within ninety days what he says is make the payment and debts on the issue of the discovery sanction which i think is irrelevant because the judge found in her summary judgment ruling that they had admitted that the debts were i think i've asked the court to look stillman declaration exhibit and that declaration of which the court took judicial notice you will see that the documents that judge march said were missing the financial records of focus from july august and september of two thousand in fact existed and mr solomon had them and that is evidence that's now in the record that they had financial records and they simply didn't didn't turn them over they were giving them to their lawyers they didn't turn them over to another point we've made this point consistently throughout this case they always had the ability under eleven u s c seven zero six to convert this into a chapter eleven to say we want to pay our creditors w you didn't apply for one to this court if you want to we did not like the point at this point of the matter is that most if not all of the harm was done within the first twenty days after the case was filed when judge march  many years ago i argued a case before the ninth circuit and got solomon lectured me and it's a lesson i've never forgotten in part because it could have been published opinion  briefing by counsel for the debtor to be over the top in its attack on the bankruptcy judge that is not good strategy it is not well the suit by the appellate bench i