think in the first instance this needs to be said this is a fair labor standards act case and in many regards the very nature of this case colors the decisions made by the parties in the case and what the outcome should be second must state what the case is not this is not a case in which the plaintiff ever filed a bankruptcy claim against mr larry miller as an individual larry miller as an individual who never filed for bankruptcy consequently it would be impossible to file the bankruptcy claim against larry miller as an individual that was never done mr hernandez did file a bankruptcy claim against larry miller acting think the company owned by at least in part mr miller and his wife when the bankruptcy was filed the underlying case was stayed and during the pendency of the bankruptcy judge wants to find out what what's going on what the recovery is going to be and the bankruptcy before proceeding that is also quite beneficial to the plaintiff in a case of this nature because until you know what the offset or credit is going to bright for the claim against that individual it really doesn't do anybody much good to go forward with the underlying case against the individual until you can put parameters on the life billet so if you win just jumping to that offset point what happens with the money already not be a case of derivative liability we are not piercing the corporate we are not running around trying to find some way because of some skullduggery that mr miller may have done to go around him and get into the assets of the company mr miller's individual liability if he is an employer under the law is a stablished directly to him by the fair labor standards act joining several independent yes both joint and several and that's a good point because in a large part this case will come down to interpretation of two items one being a claim what is a claim as defined in the plan the claim is any debt or other right to payment from the debtor whether or not such sheep right is reduced to judgment and allowed claim is a claim against the debtor for which a proof of claim ha been timely filed with the court by the bar date and as to which no objection to the allowance that of has been filed we made our claim against the company no objection was made that claim went into the play or if it's  would you agree that if it specifically had said and we released the non debtor mr miller to you'd be out of luck if we had not raised that objection in the underlying case of the bankruptcy court that it would don't comes down to who's the in our view it is not ambiguous in that since there is no claim ever made against the individual there could not be a release of such claims when you look at the definition of debt an obligation owned by the debtor which would be the company alone which is the several liability of the company in our case and any obligation of debtor and any other person or entity that would be the joint liability of the company and mr miller if there was such that the company would be liable to play if mr miller could not pay in isn't it isn't us here the question that we have to decide is a question of plan interpretation right that's it yes and our lives are yours and your client voted for the plan that is correct and in  under the terms of the voting i mean so he he's he is so that that's why it all comes down to the terms of the plant your client consented to the plan so the whole question comes down to whether the interpretation of the plan that the district court arrived at here was flawed in some way that is that they were so and and that in turn comes down to whether this question any obligation of the dad or and any other person ok your client is another person right whining your match your client his his target is an other person yes but that other person would be that's a certainly mr miller that would go to the joint liability end of f l a say right as between mr miller and the company if there was a joint liability because i knew justin say joint liability it says any obligation of the debtor and any other person that doesn't say joint it doesn't say several it just says any obligation of the debtor and any other person so the question is whether or not it's it's and correct to read that as covering this obligation is this is a very common provision and this is not the first rodeo for this provision that's true and we have found no instances in which the exception of believe the plan and the other people who are liable not and not under the fair labor standards act but under some other theory and there's lots of theories under which other people let me tell you one time as you well know when someone goes into a bankruptcy course the first thing that happens is we start looking at our whole card you know who else is liable on this thing so it's not at all uncommon to have a provision like this in a plan and to release  argument i understand that is exactly where we are because it's not expressly contained in there the the only debt that we have would be that which could flow out of the claim which is the claim against the company and the several liability  obligation or whatever and where those directors of that debt are the one thing they want is a provision in that plan that says and we're also you know any other person that's libel on this thing is off the hook and then it's important whether you voted for it or not which you did write it as we construe it if it is improper if an objection was made to release a known better from an obligation how in the world could it be proper for that for a court to produce a play on improper to to produce a plan that would it would release a nine better from a claim that had not been made in the bankruptcy court because the claim  mr miller individually had never been made in the house you know when you're going to go after a director for breach of fiduciary duty you don't make that claim in the bankruptcy court you know you're going to you're going to get that somewhere else but the plan says we release any other person who may be liable and so this is it's a common i mean i have to say i've seen a lot of these things and people  always been uncomfortable releasing the directors but it happens all the time well as i understood your brief you had three to three layers of argument one was in a bankruptcy case as to a non debtor they can't be released unless there unusual circumstances that is that is correct and be under the plan but under the plan but you're saying but as i understood that laws to non debtors there had to be great specificity which would make huge sense and court you know miller could easily have said or your client mailer is released and when they get upheld they almost always say that but here it's nowhere mentions miller's release correct that's correct and your second the third level argument is and especially in the f l s a context or isn't it isn't direct or liability for that company it's an entirely separate duty isn't that what you're saying that it's analogous to a truck driver in a truck company a truck company may be liable for the accident but the but the truck driver has a personal absolute direct liability to the person involved in the accident and it can or can't be compromised in bankruptcy court which it cannot be it cannot be signed away but and that but you didn't do travelers says that wasn't attacked at the time correct correct so could you address the applewood decision if you're familiar with that thread on nine you're not looking at the travellers i believe dealt with the guarantee situation these are cases in which the liability of the individual flow moves from the conduct of the company in an f l s a case the liability of the individual is a stablished under the statute and the statute was enacted for the purposes of ensuring that people who worked in we were not going to stand in the way of the bankruptcy plan to conclude the plan in order to get your going get paid under that something something but we needed to move the case to be able to conclude the bankruptcy to  finite limits on our damages so that we could go forward with the underlying case against mr miller individually which we moved to reopen that case for the second payment was made when it was clear that the parameters are going to be made to be made is it it's undisputed these are wages that were paid the forty seven thousand that is not based upon the andersen versus now claimants pottery  estimation from the plaintiff because perfect time records were not maintained employed not painting good time records and there was some time that the plaintiff claims he was not paid for which no time records were maintained at all at the minimum would be forty seven that is  beauty yes because i'm thinking on the long lines of why would he take thirty percent if it contemplated this really is what he thought he could get ever because there are time records even against mr miller then it would look like this was his best guess at the time but instead if he's thinking just give me fourteen thousand dollars out of the total because i still have somebody else i can go after it just to me has a different flavor understand york but it's not really resolved in the record is not and that's why it's not race  thought that was all theory of the fair labor standards act is you go against the company and then if and but you go against an officer for the same amount during the period of time simply being an officer may not be enough to make sufficient to make even a ploy or for that period of time when the employers are jointly joint employers they're going to have joints of reliability otherwise you may have several liability of an employer who's responsible for a period of time that your theory is that the be what the the facts are they come out at trial because i have never seen that that's not i have well i've seen that in some cases where you have multiple employers managers of companies that have worked in a restaurant say for two or three years adjudicated in the bankruptcy that where they individual liabilities been released that that's simply not proper because it goes outside the bounds of what the court is able to do since the only debtor before it is the company i don't understand why you why you shouldn't have been made to object to this in the bankruptcy case itself as it looks to me as if you can read that language and then the obligation of the debtor and any other person i e the c e o that you can make that you can make that claim that that released the c e o and if you didn't want that to happen and you still want to vote for the plan it was a good time to step up and object that we read that because it's conjunctive the debtor and any other person comma doesn't say the debtor and any other person just as the debtor and the debtor and any other person i can understand why the company would want its joint liability released because it's got sever liability and then it's got joint several liability under arc under our case it probably has other situations with other with other claimants but for us this language  again i may be oversimplifying but if it does come down to who's who has the burden to be specific as to the claim and the people released if i mean this language to me is very nonspecific it could be construed either way and would therefore if that's the case and i know you disagree with that and they would disagree also what what consequence in the law is there law that requires specificity as to release of third parties that you can tell me would have to answer that  court my name is ryan foemen i'm with the law firm corning reese representing the absolutely larry miller i'd like to address the question the judge against him just asked about his burden it is on specificity and i think to answer that it depends under what you're looking at whether you're looking at the affirmative defense of release or whether you're looking at the doctrine of rest judicata and in the underlying court we raised both affirmative defenses the district court granted summary judgment on the release of from the defense and didn't reach cut under the standards of release it's contract interpretation it's federal common law you look a release is a contract you use the standard and traditional tools of contract interpretation to see whether or not the document released the into t who's claiming is released that's what you do it's and it's that simple and under that rubric i believe that the appellant's interpretation is tortured and violates those traditional rules you go with plain an ordinary meaning you go with a specific provision trumps a very general you go with the fact that you do not interpret a contract to render any language is meaningless surplusage and that's what i believe their position requires has to be more it does it does and i will concede that you're on because you have the republic vs show case the one thousand nine hundred case of this court then you have the apple which i believe is two thousand and there's a big difference because apple would i believe the fact that case was there was a single sentence it was a single sentence release that was very gentle and that's all there was but the apple would case i believe was arrested a cut case it was going under the an know there have been some recent district court decisions i think one is called the northern district of texas decision called in re woolgrowers that has a pretty good analysis of the difference between a procedural posture of you have a release of a non dinner party in a confirmation plea and there's two scenarios that can happen one is that releases objected to didn't happen here the other is it's consensual because it was an object you know very different standards is there anything in the record just to show that the parties at the time of him getting thirty percent everyone sort of knew it was miller too is there anything there is are we just there's nothing in the record but i'll tell you why the reason is how things developed after the case was originally filed the f l s a case which was against very miller thing inc and larry miller from the get go was filed in november of two thousand and twelve i believe that the bankruptcy respond in february of thirteen if i'm not mistaken but before the bankruptcy was funneled a deposition was taken of larry miller and i know that there are sites to the deposition in the record that was cited in my summary judgment brief and in the deposition  it clearly establishes that he didn't contest i'm an officer of the company he didn't contest any of the factors that would apply to determine whether or not larry miller individually as an employer i do not know off the top of my head whether there was anything in the deposition that established one way or the other whether that forty seven thousand dollar figure that was listed in the proof a claim was accurate in fact so we cannot say that was understood in fact i think we have to determine it was disputed it just never got that far in the t hundred ninety eight dollars i believe and then it attaches it to simply attach the complaint in the district court now the completely district court was pretty short and sweet says this isn't a phone it's a case that you know he was contending that this amount of that money was owed to him i don't know whether the complaint even specify that forty seven thousand dollars figure but what's interesting is that in the complaint it says that what was being sought was damages for the joint and several liability of larry miller thing and larry miller ok so then you look at you say ok you've got this proof claim you have the lawsuit attached to it that's mr hernandez is clean and then you look at well what is the plan say about what a claim is and you first look through the definition of claim which in turn has a capital d definition debt and then you get to the sentence that mr montalvo has already addressed but i believe that the interpretation that the appellant is offering is just it's unfounded it goes completely against the plain language it says any obligation which is owed by the debtor alone and that's one scenario and then you've got the other scenario like here and any obligation of debtor and any other person to alone the company then you look at the second type of debt the obligation of debtor and any other person it is a conjunctive obligation and here's why because you've got a complaint filed on the f l s say against two different defendants once the corporate entity the others the corporate entities officer under the say they can both be liable for back pay but it's not separate back today it's not as if the company's got one back pay obligation and larry miller has another then miller would be on the hook for the full amount but here's what's interesting on that point the opponent's own conduct sort of belies the arguments that are being presented to the school because baseline rule the automatic stay only applies to the debtor right right so why didn't mr hernandez pursue his claim and that was a just a little bit at the beginning of his argument but he could have it he could have pursued his claim against larry miller he could have said well look only larry miller roofing and his file for bankruptcy larry miller's an individual and if i can establish that larry miller meets that doctor test to be an employer then i can see what i can recover against les miller but that's not what the appellant did instead the suggestion of bankruptcy was filed in the district court the it was in ministry to flee stayed there was what's interesting is no motion was filed to lift a stay until after mr hernandez received his fourteen thousand dollars and what's funny is that that conduct does indicate that mr hernandez understood the effects of the plan because the section that i was it was discussed earlier that's sort of common it always happens the administrative sort of hold it in abeyance i'm not sure whether that's true i honestly don't know but what i do not depends on extraneous factors like how bad the bankruptcy courts docket is i want for the district court i mean there's a whole lot of reasons why these cases get stayed sort of later as response of the judge later you know you know it i think back to the what we were discussing which is apple and i don't think this is one i think this is closer to ship in under the rest you can analysis and the reason is this isn't a confirm plan that has a single sentence that someone's trying to malign it's much more than that it's all over the plan it's very very clear that larry miller is being released now yes i must concede the name larry miller doesn't pop up in the plane and when i look at release in these non debtor circumstances week they get all powered when it says specifically the big time director employer who wants out is named it would be front and center negotiation front and center in the plan so just here you've got the roofer who gets fourteen thousand and fifty thousand or forty seven thousand and and in that isn't in line with apple and i think it is sufficiently specific but it is interpreted by the district court it is he said anyone right but the district court is looking at eleven point five of a plan ok and eleven point five has not language that says once the plan payments are completed claims asserted against the debtor shall be deemed paid in full including the release of rights to enforce or collect such claims against nanda parties now that state is very broad it is very broad standing alone but that's not the addition ok there are others for instance if you get to section eleven point one zero the debt or the reorganized debt or the officers and directors of the debtor and the shareholders shall be discharge and release from any liability for claims and debts capital d debts as defined by the plan i think that's an important provision as well and i think that's what makes this different from  the other thing is you've got to look at the context this isn't a company with with twenty officers and directors and thousands of employees and at the time the bankruptcy was filed mr hernandez had already attained the deposition of larry miller where he had already said the only two officers of this company me and my wife my wife owns fifty one percent of the equity i own the other forty nine so that's the case we have here is it's not there's no ambiguity as to who the officers are they're very well known and then i think the bankruptcy court but no he didn't want to do that because the answer to that would have been clear i mean he would have lost on that point so and part of the problem here too is that i looked at the disclosure statement i mean this thing is a deal on the cheap this is not you know this i mean the this is not a huge disclosure statement that's right an absolute on the cheap  but this should have been the subject of an objection in the bankruptcy court which would have clarified as was in the other case which cases it was a that stock clarification from the bankruptcy  court there are multiple cases but i have to go into the bankruptcy court and you say ok we want clarification on this that's right that's what should have happened here and it didn't happen and and i think suspect the plaintiff didn't want it to happen because the answer from the bankruptcy court would have been clear so now we're at the fifth circuit there are a couple other things to point out with respect the procedural posture in this case i believe the question was asked you know  you know what were the terms of the plan with respect to receiving thirty percent what's interesting is the plant i think had six classes a class one through five in class a yeah he's he elected five eight treatment and five  was the was the class that you had to specifically elect and cast a ballot right and i believe that the way the plan worked is it said if you want classified they here's the upside you get your money quicker than you get your money in two payments but you get thirty percent of your claim and he affirmatively opted that's right and if you do not elect classify the treatment i believe you would have been classified and i can't recall the top my head whether he would have received one hundred percent but it was a greater percentage but over a longer period of time i believe over sixty months and he's still got his lawsuit in his mind he just you know looks at a miller's not released law favor specificity in release he thinks ok i may recover you know the twenty thousand more i can move which no one's denying emoted did the roofing jobs my answer to that is you can't and you should not look to the party subjective into what they're thinking but either way so we can't infer that ohi is sitting in silence but what you can infer and in fact i don't think you even need to infer i think just repeat the plan commission is this is not a long plan you know all of these provisions are bold they're conspicuous they're right there in front of you and they have language saying the debt or the reorganized debt or the officers in the directors of the debtor and the shareholders shall be discharge release from any liability ok the other thing is going back to the contractual analysis that you do for the lease again you should not interpret a confirmed bankruptcy plan any differently than you would co don't believe either side of this dispute found a single case that is in f l us a claim that is followed against a corporate debtor and individual officer i mean that fought against a corporation thought against an individual officer corporation face bankruptcy that same plaintiff files that with a claim in the bankruptcy then the confirm plan has the release language that we have here the plaintiffs doesn't object to it in the bankruptcy court then goes back to the district court and that's the procedural posture this case and neither side has found a case on all fours with that you know and i'm not surprised because it's an unusual situation and so my best case is the fact that there is no case out there i could find at least saying no you look at f o c claims differently under this fact that you don't it's not special in that sense and and you know there's a lot of the opponents brief that addresses the fact that mr miller can be independently liable under the f s a that's not contested that's absolutely true there's all kinds of claims and bankruptcy where directors or officers have individual lives bill of that's right and they use provisions like this to get them releases and that's what i mean this is to come back in and ask the bankruptcy court now wait a minute you know i want to proceed against miller personally and i this is a this may waive it and i want that clarified but no right instead he votes for the plan and makes this claim under section five  the record and in the wall the release analysis because he not only didn't object to the plan but from a plea accepted and voted for it you look at it as a contract because it is a contract as between the app and the debtor and you can have third party then if issues of contract you can have parties released in a contract between party and party b can release a party see in this case larry miller that's clear now on risk judicata i believe the rest to cut it does fact that he is a party aligned in interest with the debtor that he is the debtors officer and the fact that his interests are adequately represented in the bankruptcy makes him treated as a party in the bankruptcy case and i believe those cases are c case one seventy seven federal second one sixty six and there's a district court case out of the northern district of texas i think called in ray's e g gathering so it makes it clear that yes larry miller was individually was not a party to the bankruptcy but that for the rest judicata analysis he's treated as if he is one because he's an equity he's a he's an equity security holder he's an officer the company is interested represented so that's a first on the wrist you've got getting the second prior judgment by a court of competent jurisdiction the relevant law here is because the appellant did not object to the confirm plan the whether or not it was within the jurisdiction of the bankruptcy court to allow a release of an on dinner party can't be collaterally attacked and the district court mentioned that in its water granting summary judgment and that is correct because to say this is the language can't be enforceable because the bankruptcy code doesn't allow it the proper venue for that is objecting to the firm plan and appealing the confirm plan to the district court and possibly this court but it has to be on a direct appeal it can't be in the separate district court  saying whether it's the same cause of action and this this circuit uses the restatement test the same nucleus of operative facts under the transactional test and i don't think there can be any question court is is mr miller a statutory employer that's the only separate us in fact there wasn't a dispute in this case on that issue you cite espinosa the supreme court opinion i did not your honor well a justice thomas he's talking about rule sixty before strikes a balance between the need for finality of judgments and the importance of ensuring that litigants have a full and fair opportunity to litigate a dispute this is a bankruptcy case where as here a party is notified of the plans contents and fails to object to confirmation of the plan before the time for appeal it expires at party has been afforded a full and fair opportunity to litigate and the parties failure to avail itself of that opportunity will not justify rule sixty before relief we us agree with the current appeals that the bankruptcy court confirmation are not white that was a challenge saying that confirmation are with but that language about if you're going to have a problem you better go in that bankruptcy court and object to it and here he didn't object he voted for it ye claim is defined is against only the company and the debt as defined goes to the company we didn't object to the plan because of the plan was for the benefit of the company to get the company through bankruptcy when the company's to bankruptcy then we could pick up the litigation the district court of the case along which would be the benefit of the district court everyone involved there was no benefit to us necessarily to object to a plan that we didn't think it affected our case against larry miller as an individual our position of course is in the first instance that there was no jurisdiction because releasing a non debtor for a claim that wasn't made is outside the bounds of the jurisdiction of the court house but more properly by outside the power or position  been that the court had the jurisdiction but and certainly the power to issue an order of that type and our argument was one of interpretation of the contract in conjunction with the bankruptcy code to only allow the plan the contract in this case to be interpreted in the light of what was possible for the court to do not objecting to the plan again allowed us to move the case along quicker and get to trial which is where we would pick up the balance in the claim that we still retained against larry miller in our position that we still retain against him as an individual to this very day with regard to race judicata the case was not adjudicated as mr miller's individual liability in the underlying bankruptcy case that's that part of this case has never been tried the claims against him never been tried the claims that were made in the district court that were what we have is really more in the line of the baster case where the defendants went through bankruptcy or the company went through bankruptcy and the case remained alive as to the end of the to individual defendants and the court in that case determined that the individuals were not debtors and that the debtor was not a defendant and that is a position that were and in this particular case mr miller as an individual was not a debtor in the underlying case or claims against that debt or are defined by the debtor against which we brought them the several claims against mr miller individually which are not addressed by name with regard to him in the plan remains and we take no exception to the fact that the company itself would be released by the plan and that that company has made all the payments to our client under the plan that were acquired by the plan that's why we waited you would know that the plan was going to be completed i asked you until the payments were actually made and therefore you would have no constraint on the amount of the well if you have no definite signing of the amount of lost it to be used in the trial court  circumstances they can if it's specific enough so again it comes back i see this this is maybe you each say the language is clear feisty it is a big of some back to do we look for parole evidence was there any discussion ever in these negotiations that miller was getting off to none of which i'm aware add is exactly issues that should have been raised bankruptcy exactly understand no reason to be here at this stage in this deal arguing about this and my humble view understand your figure well obviously have a contrary position recognize tha thought well we take up cases four and five pounds stand a short recess