especially when no court order releases those people all right so mr davis we understand we've already we've reviewed everything and all the arguments and i i have to say that the brief enough was kind of a shotgun approach so what i'm going to ask you is if you could give us your best reason why we should overturn the bankruptcy courts dismiss all of this case but what's the number one reason we should rely on when we reversed the bankruptcy court the fiduciaries had nothing to do with the order and the sale is not impacted by this lawsuit ok what do you mean by the fiduciary had nothing to sued the creditors committee because they have a heightened duty if not a fiduciary duty to the estate and they're not part of the order there's nothing to do with the order they order doesn't release them the sale order the sale or correct so clearly if there's any coattails to three sixty three m finale or any type of finale doctrine from the common law it affects the seller affects the bar excuse me is your cost of action then based on common law or is it based on three sixty three m it's based on the common law and the laws of the state of arkansas where does that appear in the briefing where does that argument appear i mean there's a whole bunch of stuff about three sixty three notice constitutionality where in your brief do you argue that this is a common law breach of fiduciary duty action we don't argued in the brief as it's in the complaint those are causes of action we spend most of our time on every seven to respond to this three sixty three m concept that has been advanced by the opposition that somehow strangers to say order enjoy finale and absolution of some sort the seller is the depth the buyer has been dissolved it no longer exists the assets are down the road the hands of a third purchaser there are no causes of action that can impact either seller or buyer at this point so as far as impacting title it's not going to impact at all as far as impacting a specific provision of the a p a involved it doesn't impact those with a cynical a case interest of it doesn't impact any condition of this sale accordingly i don't think three sixty three m and the finale applies to at causes of action against our fiduciary so the fiduciary is of the estate and the creditors committee more importantly and they're not even mention the three sixty three m finale dr and covered them because there was a sale order and they said the sales fair and the order in good faith and somehow the law firm that triple dealt gaging triple dealing one point and somehow this law firm claims well three sixty three finale if it's a good sale i'm absolved of all a of all my transgressions with my clients well second district said their second circuit said no not going to happen you have nothing to do with this sale you might have conducted it you might have engaged in misrepresentations about it you're not covered by any release in there and it has nothing to do with your conduct and doesn't absolve you  duty to this debtor and have breached it and they get to sue you so the best argument is your honor the conduct of these for two shares or those with hiking duties is so far removed from whatever happened in the sale order in terms of liability release that they have really they they don't belong in that safe harbor are you counting the committee members as part of your sample is part of the new sherry duty well those are the hiding to the i used the term shop and i know there's not only tell the other committee members to the extent they didn't know but perhaps even report to its constituency and instead we're faced with a confidentiality agreement a gag order signed by all of the committee members that seems to be inconsistent with fully informing your constituency of six thousand and secured creditors in the face of allegations that there was fraud going on with the very parties that the court contends in its word are profound to be in pretty with this trustee for residue to come out of purposes other preclu on their research as collateral estoppel well we don't need to re argue everything in the race we do need to state though as findings of fact made in the absence of a rule fifty six motion well c the plaintiff is entitle to do some discovery and to be notified that the judge is going to make findings of fact separate apart from what is in the record we didn't have that opportunity and so for this court i believe to affirm the trial court of the bankruptcy court it has to make those same findings of fact which were made without authority by this court not this court but the bankruptcy court so to be or when they left the rails of the left the fiduciary rel so to speak and there may be damages resulting from the certainly the loss of assets due to it which would be the s well they're going to have the same species of damages which would be related to the loss of the assets that were otherwise transferred into the fraudulent transfer cause of action which would be the who would include the fees of ten e o to the extent they were charged back to the by the way tell me it was the financial advisor to the committee and so we'd probably seek the discourse on the fees to the extent we had standing ateneo then the damages regarding the avoidance actions that were transferred and to some extent the real estate that was shall we say reappraised dramatically why didn't you bring this action in state court if it's a common law claim and just avoid this full three sixty three well we read the case law as it being well first of all the main bankruptcy action of allan's was occurring at the same time and we thought it best to bring it in front of the court that originally had it there are a lot of facts involved there are a lot of parties involved we want to be in front of the court about the most subject matter knowledge of not only the company but of all the people involved especially the fiduciary that the court appointed the court had an inherent knowledge of of the applications made by these organizations and actually approved john hickman and alvarez and marsal that basically take over this company so it made more sense in a for the court wanted to abstain we certainly want to give the court that the bankruptcy court that opportunity first to have the so access to the house that if the bankruptcy court issued an order saying that the sale was fair and reasonable that sale was done in good faith all these things how would a contrary ruling in your case have some impact on that i mean by saying that the professionals that conducted that sale that the quarter ready found was fair and reasonable conducted in good faith etc was somehow a breach of fiduciary duty doesn't mesh does it i don't know that a collateral order is going to impact the sale order in are many orders that are inconsistent i don't know usually but they're not the real party and i could point but they're not the real party in interest a collateral order as to a non real party and interest has no impact there is no truth and it doesn't offend any it doesn't offend either order i wonder if they're inconsistent i just want to make sure i'm understanding the fraudulent transfer claim that you're arguing is that these professionals were paid amounts that they shouldn't fraudulent transfer his assets were transferred from the owner but that based upon their fraud but that's the subject of the sale order right the transfer of the assets that that directly from the so are we talking about two different things here you're talking about the sale order and how those assets were transferred pursuant to that sale order and then you also have a cause of action for a breach of fiduciary duty or there to late please the court my name is marcy late and i represent the defendant by everything you read and the trustees briefs and everything you just heard this is actually a very simple case following a public auction the bankruptcy before the trustee brought this adversary proceeding in that adversarial proceeding he brings fourteen separate claims each of which attack integral findings in that order and attack the process that led to that under three sixty three finale parts of you don't mean there was on appeal it was appealable but nobody appealed exactly but do you agree or disagree that the claims against the  and apart from the three sixty three sale order i mean isn't that a different thing that was not included in the sale whether or not those duties were breached yes your honor it is different however the findings that were made in the order those findings would have to be overturned and re examined in order to plead a proper claim for breach of producer duty so in the second dismiss there's a chart at page forty six which is really helpful and what we did there is we went through each of the claims that were surveyed and the underlying complaint and we hold the bankruptcy court below here's what the trustees allegations are on the producer do to claim for instance that claims it brought only against the professional defendant that claim asserts that the professional defendants breached their duties and committed a number of alleged acts which culminated in the lower auction price and they should have obtained can i let's think about the three sixty three order as your honor is recognized earlier during the the argument culminated in a lower price what is your response to the appellant's argument with regard to that issue that that's boilerplate that had no substantive evidence to support it while your honor i think that that is an attack on the bankruptcy court that's unfounded quite frankly it is true that there was not a at the denture a hearing on certain aspects of the scale are but it's also true that no party or any creditor or anyone who received notice came to that herring and object ed and said we need to put on evidence we need to prove this up forever and so the court was able to take the record below which included the auction transcript which included the bidding procedures which included the fact that there had been a docking horridest those are part of our record here they are the they are at correct so that the bankruptcy court had all of that in front of it and was able to make a ruling based on that that there was a good faith bidding procedure and that the sale was appropriate and in the best interest of all creditors who would have brought the objection at that point the trustee was not appointed so would it have been the argument that i think the person who would be most probably to bring in a direction at that point in time likely would have been the other bettors to the proceeding so you had mccall who was another better and then you also had the stalking horse better as well and so i think that either one of those two could have brought forth an objection along with the creditors of course so there were parties certainly and the trustee is and has been pretty with the debtor in possession as well as the creditors that had notice to the sale and would have been able to object at that point in time when mr davis was up here before and he told me that he thought that the number one reason that this court should should overturn the bankruptcy court decision was that these principles of finale be don't just flow to the seller in the only flow to the seller and buyer excuse me that's just not the case that the case by the very clear in the eighth circuit that the principles of finale that come from a section three sixty three sale are good not just as getting the parties to the fail but are good against the entire world and that is critical to bankruptcy sale critical financially principles now it's not that the trustee had no remedy whatsoever he did the trustee was appointed here in june of two thousand and fourteen he had time under rule sixty three and tell one year following that the order where he could have attacked this order and in fact someone did try to att but he blew that deadline and he also can't establish any of the other exceptions that would allow him to attack the order he failed to prove fraud in the court there's simply no allegation in the complaint of any wrong to the level of fraud on the court it requires very agree just conduct that the files the court itself the fraud that he plead could have your honor allowed for sixty three action if you had brought that time within that one year bar would it be however the disinterested in this issue that changed with the professionals in terms of their advice that was given that would give rise to a separate cards about if they were employed for example as professional by the estate and they're interested in did at some point because they were attempting to collude or obtain this wouldn't that be a separate cause of action that was different from the sale i'm not sure i completely understand your question your honor well when we're talking about fraud upon the court the court approves the employment saying that there disinterested it sounds to me like mr davis is saying at some point in time they were not disinterested if he's making that claim today that certainly not within the complaint ok that was my question ok thanks jonathan so he can provide on the court sixty three is foreclosed three sixty three and a statutory exception to the finale principles but he appears to have waive that argument on appeal and in any event none of the committee members who were potential betters that could have colluded in setting or controlling the price of that there were actually potential betters not enough of those parties attempted to qualify as betters none of them expressed any interest in betting there's simply no support for the argument so those are about the actual causes of action that were played in the complaint that he could bring these claims based on the didn't stop it with my complaint though in the opposition bruce below as well as on appeal here he proceeded to bring a new argument all along of different ways that he thought he could overturn the sale and none of those apply either the five left on one overturned a stale if perspective application would create undue hardship on a party but there's no perspective application to the stale order once the sale are closed that was that sixty five isn't applicable sixty six the catchall that allow someone to set aside their order if there's an extraordinary reason but there's another limitation to sixty six that's extremely important and that  that conduct that alleged can't fall within one of the other categories and here the conduct that he's alleged is fraud and collusion and that we're only within the sixty three exception which is and that notice was served on more than five thousand creditors on january tenth that notice was more than twenty one days an advance of the scale hearing if you met all of the requirements under the rule all parties receive that notice an opportunity you heard there's no due process violation here this was a section three sixty three sale and the trustee also has not explained any basis on which he thinks he can take a supreme court decision from two thousand and seventeen and that aside the order of act that that occurred three years earlier it would wreck havoc on because the courts allow that to happen javert doesn't apply either there's no basis to satisfy this court order and because of that saying though is i'm not trying to set aside the sale order what i'm trying to do is seek damages from these professionals who allowed this travesty to happen th that that these assets were sold for not their fair are fair value essential in these areas professionals cause that to happen and caused the court to approve it those professionals being the professionals hired by the debtor as financial advisors plus i believe the members of the committee unsecured creditors that they that he's got some sort of damage claim against them swap so how does this sale order stop trustees claim against those  ways first the pretty principles of finale that come from three sixty three do not just protect the salary of the buyer they're good at against the world and so even though he's not trying to affect a title to the asset he's attacking inte provisions in the sale order like we discussed earlier the chart that we put forward on is there anything in the mail order though that addresses whether or not the produce sherry's breached their duty or whether they properly applied what they needed to do i mean that that wasn't addressed in the sale order was i don't know that answer that question that was not something that's been raised in the briefings but the sale order does address key findings that would have to be overturned to date claim that that that the that the assets were not sold at the highest price possible and that the bidding procedures and that the auction process wasn't fair and saying that the price wasn't fair of a price wasn't adequate the price was in the best price that he could get while that that was determined at that the order and the side from the principles of finale that are n three sixty three there's also the precluded from being bringing claims against all parties or there who were part of the sale order now the professional defendants were not actually parties to the sale order  claims against those defendants and collateral estoppel only the party against whom you are trying to preclude an issue needs to be part of litigated and that were special to that order those issues they can't be overturned the trustee is precluded from trying to read argue those issues here the trustee argues that those issues were actually litigated because there was an evidentiary hearing but that's not true we discussed earlier that at that there was a long record here that allowed the bankruptcy court to make his findings without evidence and there was also a witness that was available had the court had any question that he needed to have answered before he thought that he could order the sta assert new arguments and each time the defendant had to spend countless hours addressing his shotgun approach looking back into the underlying bank separate record to show that a lot of the allegations were simply wrong and contradicted by that record and the bankruptcy court properly found that because of the principles of  they used the mythical thirty four million dollars that somebody counted either before the sale during the sale herb most likely after the sale and told everyone that was ok or didn't get in the way of it but her question was that pertain to wrongdoing alleged everywhere so accounts was a mistake in which he said that it was not in there but to answer your question the sale is the reason presumably for them going through fiduciary duty is a collision argument you're saying they didn't disclose in these parties colluded to obtain the assets so you are under three sixty three at that point not you not three sixty three in collusion when i'm actually saying court appointed them to do that and approve their feet small time if they got a bonus for selling it apparently but you're helping sell it but their fees were charged for years before the sale and were charged and they received a bonus after the sale that are unrelated to the sale all right but they were not doing the dips bidding at some point as as judge had been you you pointed out that something happened and they bought into someone else's plan for these assets and the the concept that that somehow the order and what findings it has that are necessarily trustee because they would it would they were not present the trustee was not present the trustees privy was not present and we've cited all the case on that the trustees are not bound by a decision by the court on that subject they  it litigated title and it litigated how much it was that's all of letting it get a lot more and that the the order found good faith the order found that the sale was fair and reasonable the order found the price was