what what are the assets what the what's going into the trust as presently constituted you know what part is our insurance proceeds what part are contributions by the company yeah that's good thanks the status of the trust the plan has been consummated the trust is got trustees it's operating and it's processing claims in general with respect to the there's the there are complexities associated with this trust that are not reflected brief the truck federal mogul had multiple subsidiaries and says several of those subsidiaries had independent ly lines of s tests liability they were not they were companies that had been acquired by the parent over time but prior to the acquisition they had had businesses that involved production the production and distribution of best estus containing products as a result  mogul products corporation or f m p see it in turn is the successor by name changed to a company called wagner electric company wagoner electric company prior to its acquisition by the trust as a whole including the various of it's got a sensually stock in the parent company or mogul and in different some funds assignments of in some instances settlement some instances unsettled insurance the federal mobile products some fund this is you can be there's the trust distribution procedures are in the joint appendix and you can you can follow this room of the products or well if you want to get down into the weeds you're out or you can buy the as i say it's complicated anyway the federal mobile products fund has been given a modest share of the cash from the sale of the federal motor mogul parent company stock that the that was occurred at or shortly after the effective date of the plant and in addition it has received an assignment of the insurance coverage that's alleged disputed to cover the claims against federal mobile products corporation so all to the of my knowledge the bulk of that insurance has not been settled and is being litigated in a state court action involving a number of the appellant's here and the  trust in which the trust is seeking to obtain coverage under these policies that litigation is ongoing it is unresolved i do not believe i mean i could check in the audience i believe there may be some representative trust here and i don't believe that the trust is paying any claims at this point because it is not the we found out yet whether or not it's going to have the insurance that was a side to it either as a result of a decision by this court in this case or as a result of the adverse decisions in the state court litigation in new jersey and as a result the number of claims the claimants don't have any incentive to file claims at any great rate because there is nothing to pay them and so i don't believe that there is a i know of no count of the number of claimants that have yet filed claims against federal mogul products i will say in candor that i the five hundred thousand claims figure just the record that you referred to i cannot represent to you that that was a figure that was limited to the federal mobile products claims that were going to the sub fund as opposed to perhaps including claims that were going to other subfunctions in the trust because of claims against other debtor entities that were part of this consolidated plan and i hope that cellphone i'm russell rome with when morris representing the london market insurers i like that just a couple things that we may have some points in our brief about how the shares were transferred and i don't think that i think that's correct came out of the documentation for the for the case and for the trust what i would suggest to you i can answer the questions either but the trust has a website very active  claim stream could in any question thank you very much please the court daniels finally hartford with the court's permission i'd like to reserve five minutes for a trial thank you this appeal presents a question of broad importance to a wide variety of federal laws and regulations that apply to debtors in bankruptcy whether eleven twenty three a if the bankruptcy code preempts non bankruptcy law governing the transactions a debtor specifies a means for implementing its plan that is candidate o transfer of state property which is what's at issue here merged with a competitor or issue stock under its chapter eleven plan notwithstanding federal and state law restrictions on those activities the ninth circuit which is i believe the chooses to say something in one's section of a statute and chooses not to say it in another isn't the ordinary course to assume the congress knows what it's doing and it intends a limitation we're in search one and it doesn't intend where it doesn't absolutely judge jordan and that's why our analysis is slightly different from that of the p g and e court we believe the court reached the right result in holding that eleven twenty three eight doesn't preempt restrictions on transfer of a state property but i don't think it's necessary to read a language from eleven forty two a in she will have in twenty three a to reach that result i understand that but i guess my question is a little bit different it's not only that one might think that the ninth circuit's approach was suspect but doesn't the the the same reason that the ninth circuit's reasoning is suspect in fact support your opponent's position here that is congress spoke very broadly eleven twenty three they knew how to speak their early when they wanted to and they did in eleven forty two and they didn't in eleven twenty three and that should say something to us should it not with respect judge jordan i believe that the relationship between section eleven twenty three and section eleven forty two and a strongly supports our position well big rig in isolation doesn't the plain text of eleven twenty three a state repeatedly cautioned a provision of the bankruptcy code can't be interpreted in isolation and something that might seem clear and isolation or might seem ambiguous in isolation will be clarified by the role that position that that provision plays in the code as a whole and i think that's true here if we look at the text of eleven twenty three a itself i think a reading that's at least equally plausible looking just at this text is that the express preemptive language notwithstanding any otherwise a political non bankruptcy law modifies the seven requirements that a debtor has to include in its plan  and it's quite clear that this notwithstanding language is expressly preemptive it preempts any law that would conflict with what's in eleven twenty three a i think the difference in our position and apple lease position is that  to this statute read this provision to be empowering to give debtors the power to undertake any of the transactions listed under eleven twenty three a five notwithstanding contrary non bankruptcy law whereas we read this provision to be prescriptive to say you tell the debtor these are the seven things you must put in your plan or not we're we're well familiar i think with what the what the respective positions are and what we're trying to get out here is is underwhelming reasoning to your point that this needs to be read in the context of the code i'm wondering whether it's meaningful that congress in an acting section twenty four specifically contemplated that there was going to be a way to deal with massive  asbestos liability in the united states and that was going to involve some structure akin to what we're dealing with now and if we read eleven twenty three a day in light of five point four as your own argument suggests we ought doesn't that say something to us about avoiding the kind of limitations  insurance policies to a trust involves transfer of any property of the estate of whatever kind and the remaining nine transactions that are listed that's not to say that five twenty four g isn't relevant to the particular issue of insurance assignments but i think it's important to be clear that the question before us is not does section five twenty four g impliedly preempt those restrictions the question is does eleven twenty three expressly pre amps those restrictions i think the analysis is quite different i think that the answer in this case is distance of five point four g have any influence on how we should look at eleven bankruptcy code and it wanted to depart from the way that non bankruptcy law orders the rights and obligations of the party is it does so expressly and in great detail that's the case eleven twenty three read in light of five twenty four g that makes you think there's not the power that your opponents are asserting is in that section of twenty three well there are so i mean there are several reasons why we believe that i don't i don't think that it i don't think that it makes sense as a matter of statutory interpretation to construe force from i guess it's twenty three and combustion engine erie doesn't doesn't that tell us something doesn't that carry some weight in your adversar argument here just meant i certainly appreciate that this issue has been argued to the court before some members of the court have expressed the view that c e is binding precedent on this question i'm certainly not here to argue with this court about what this court from reaching the merits of the issue primarily well for a couple of reasons for one that discussion in c e wasn't necessary to the court's holding the court vacated  confirmation order on other grounds and therefore on the ground that the injunction of that was entered exceeded the court's powers and therefore that section of the court's opinion wasn't necessary to its judgment  that discussion also doesn't deal in any detail with eleven twenty three it discusses the objection of the london insurers to the assignment of their policies explains that section five forty one of the did explains that section five forty one preempts any restrictions that would prevent the debtors property from coming into the estate that's something that's you know undisputed by anyone certainly correct  and then says in this case that didn't happen because the policies it issue are policies issued to non debtors therefore london can raise its objection to the assignment but we're not going to consider the merits of the issue we're going to bait that's not necessary because we're vacating the confirmation order on other grounds and although footnote twenty seven as you mentioned judge smith does mention eleven twenty three a five i would find it odd if this court were to have in just a footnote that adverts to the provision without filed a brief supporting our position when this was argued before the court and those are my reasons for believing that c e isn't binding and that this court can reach the merits you in you and your opponents say that's you know that's not really the case i think that it does not and even in in our opinion in global technologies the embankment court that that the insurance industry has had a problem with the especially the sly ability that way back the comprehensive general liability policies were written on an occurrence or an accident basis and that you got some unfavorable or the insurance industry got some unfavorable decisions that really collapse all the coverage even be on the terms with the can take continuous trigger analysis and now those policies that then changed in your it's on like on an occurrence basis i'm sorry it's on the claims made basis no longer an occurrence i think our only submission here judge the record is that section eleven twenty three eight doesn't bar us from making that argument in state court as mr lockwood said there is ongoing  litigation this defense has been raised by the insurers the litigation is still in the discovery stage and i think it's going to require a detailed inquiry into the facts and circumstances surrounding the trust to know exactly to what extent it may have changed our rest now seeking more distinction without a difference also just shortly well in one of the reply briefs it's a police enforce consent to assignment clauses unless the assignment has increased the insurers risk and that's been how do we then that that takes you back to judge rick as faustian which is how is your risk meaningfully different if you are if the claims are being processed through the trust system as opposed to in the torts well i think that g a good example of the kind of case in which that might be so i mean in that case this court recognized that the establishment of a silica trust attracted many claims that hadn't previously existed sure but but as  has been pointed out this is that case right we're talking about no as best as i believe has been wrestled with for decades that's that's absolutely correct and we're not in a position now and i don't think now is the you know as the parties have agreed to the only question that we were going to raise now is the pure legal question of does eleven twenty three a preempt this defense that defense under these facts and circumstances may prevail or it may not i i don't know and i can't answer that question  but i think our only submission is that eleven twenty three a doesn't bar us from raising it and that that doesn't prevent five twenty four g plans from going forward because of the nature of the defense because you know you have a basis for saying that your risk is seriously in the trust as opposed to the words yes that the the main difference between processing claims through the trust and processing them in a tort system is that the insurer loses its ability to defend the claims as they're tender rather the claims are resolved through abbreviated administrative  procedures they may be so they may be subject to lax or standards than would be applied in the tort system these i'm not saying that those problems exist here but those problems certainly exist is that a problem that's better address to congress than to the courts well i think it is i think it is a question that's appropriately addressed to the courts it's also a question that congress could address if congress wanted to expressly preempt this defense it certainly could do so it it i believe that it hasn't yet the question it's quite clear that i apologize and i know you know i think it's quite you know that congress couldn't have meant that because we're that so much of the rest of the bankruptcy code including eleven forty two which governs the implementation is not to be subject to this program it was not no i wouldn't say that at all i mean i think that i think again i think that's a question about conflict preemption with section five congress would want to limit the court's ability to implement a plan to a greater extent than they wanted to limit the parties ability to create a confirm plan but that beyond reasonable to conclude in the light of the language of eleven twenty three i don't i don't see why congress would have wanted that system judge smith because it seems to me it would be reasonable to conclude i actually there's a matter of statutory i actually believe that it would be because it it doesn't make sense to me that congress would on the one hand grant sweeping authority to brush aside all on bankruptcy law with regard to transactions that can be used to implement a plan and then with the other say well but when you go out and implement your plan we're only preempting laws relating to financial conditions and i think the more plausible way to read the statute is that section eleven twenty three a doesn't empower the debtor to undertake these transactions notwithstanding otherwise it will go on bankruptcy are other provisions of the bankruptcy code do that where it's necessary to override non bankruptcy law and then eleven forty two gives the debtor the authority to go out and implement those transactions and do what's necessary to make the plan work not withstanding state laws relating to financial condition which might limit its ability to undertake those transactions because it had been a doubter let me ask you this  everyone agrees that eleven twenty three has some preemptive sco correct and it seems to me that the us i think it's the s c hacks case for circuit and pacific gas can be reconciled the the result in pacific gas makes sense to me if not the reasoning because you have a significant public policy issue that it seems to me that the states have a legitimate interest maybe the federal government but certainly the states did there why shouldn't we be thinking of ways to cabin or limit the scope of eleven twenty three i am not a long the lines of pacific gas  involving public health safety or welfare but not with respect to private contracts i think the fact that the court raises that question shows illustrates the difficulties with apple lee's interpretation we agree with the difficulties were it the case that section eleven twenty three preempts otherwise a political non bankruptcy law governing transfer of property of the estate i don't see how as a matter of statutory interpretation you can make a difference whether the property is rights under insurance policies as it is here or a nuclear power plant you don't we the public safety interests implicated by the operation of a nuclear power plant in the contractual money and priests of the oh i certainly do i what i don't see is any textual basis for reading that limitation in eleven twenty three a i it would be a very odd way of writing a statute and i think very inconsistent with what congress has done throughout the rest of the code to say we're going to give the debtor sweeping power to undertake whatever transactions it wants to implement its plan not withstanding otherwise a clickable on bankruptcy law and then we're going to let bankruptcy judges sort out you know whether some ridiculous law is of sufficient importance as a matter of public policy not to be preempted i think that's not generally how congress works when it  it does so clearly and expressly it's done that in other sections of the bankruptcy code and i don't believe it's done it here thank you good to smell it thank you very much we'll have you back on to do the standing of this court took the objecting insurers and the london market insurers and put them into a separate component and address the issues relating to them in the opinion the courtroom member that won the market insurers only assured basic and limits who were not debtors in that case the court looked at what happened down at the bankruptcy court with what what was then called the super preemptory language and this is what the court said of course this court in addressing the insurers voting argument the bankruptcy court emphasized that the plan had been modified to make it clear that nothing impairs their rights the bankruptcy court found that the assignment of insurance proceeds to the asbestos b i trust did not impair the rots of the insurers but call's the rights of the insurer shelby determine under the subject insurance policies or subject insurance agreements as a political and nothing in the plan is to effect that that is a clear straightforward statement that the reason the london insurers did not have standing in this  was because their assignment rides were to be determine under the insurance falls that's what this court this court then went on to say as both the bankruptcy court and the district court recognize the super preemptory provision broadly preserves the insurers pre partition rights under the subject insurance policies and so that's what this court hail at this point in the case the that's on pages t sixteen to seventeen at this point in the case there have been no discussion about eleven twenty three i've nothing that this gushing about eleven twenty three five came up later it was the second to last paragraph in section three b of the opinion and it came up because the court said london market insurers object to the assignment want to sign up where they are talking about london market insurers insured that objection and in doing the analysis what you did was you looked at section five forty one of the bankruptcy code five forty one say is that the assets of a debt or the property of the estate or all the debt or are automatically transferred into the bankruptcy estate that's what exists and you said well basically lungs were better if their property didn't come into bankruptcy state that's exactly rock and there's nobody in this case who is saying who is were raised an objection that federal moguls assets came in to the bankruptcy estate that's all you talked about there it was footnote twenty seven judgment and it footnote twenty seven presumably to say yes you can transfer into the bankruptcy state because the concept of transferring l of the bankruptcy estate to a trust or any other third party was not addressed by th what what happened when the eleven twenty three a five foot note was put in there and again i think the court must have put it in just to support its conclusion that five forty one allow the transfer of the assets  the jet case was not about the palace now it was about bankruptcy court standing and what this court essentially wounds was that the funny business that was going on with the silica climbs was enough that the insurers at the bankruptcy court level could say hey you know this ain't right you know we need to address this and you said yes they should there's a footnote in there which says we're not deciding assignment in digit case you did not assad decide to simon in that case it wasn't as part of your to if you were going to if you were going to use eleven twenty three a five to preempt state law you would have done more than stick eleven twenty three in a footnote you would have discussed it and analyzed it  about reading eleven twenty three in conjunction with five hundred four g and trying to dig out the intent of congress in doing correct i do not understand i understand that's the argument that's being made is yes yes well your hon would i would direct the court to statute five twenty four g and they have so many sub par it's i cannot at my age just remember what they are but i think it's in for a roman one sub par three and what this is is it's about the injunction and who gets the benefit of the injunction you know that if they have to do stupid certain things to get them to get the injunction we argue in their brief they didn't do that injunction and it says notwithstanding and so on and so forth the third party has a den of five from the terms of the injunction alleged to be directly or indirectly liable for the conduct demands etc by reason off and  therefore criteria the third one is the one that's important the third one is the third party's provision of insurance to the debtor or a related party congress thought that insures congress definitely thought about insurance and they definitely put it in five hundred forty and they said hey insurance companies if you want this case off your backs you can go in you can pay into the trust you're not even insurance companies aren't even debtors in the world of bankruptcy is generally debtors and creditors insurance companies are neither so congress specifically thought about insurers and congress said you know we're going to reach out to insurers and we want to say if you guys are willing to pay we'll give you the channeling injunction now if this nexus a five point four g and eleven twenty three five is supposed to explain what congress is thinking then what i would say to the court is if congress nancy that the insurers policies had to be assigned under eleven twenty three or some other law they would have put it right here and they would have said and the insurance policies must be assigned to the trust and they didn't say that but there's a difference between have to be assigned here yes well i'm saying that if their argument is they must be a sign it would be here otherwise you can't it's not mandatory cases are proved this reorganization was completed years ago and there's been no determination as of today as to  their argument that well you've got to look and police to gather firewood twenty four g speaks volumes if there had been a mandate from congress to sign the policies it would be written right here and it's not written there there is no man e there was no mandate under manvel and there isn't no mandate here it was never intended to be the the other the other argument i think that i would i would like to address the last twenty stuff seconds is what the they they put a number of terms in those policies governing their risk they put in how much you have what's the coverage how much are we going to cover what's the premium how much do we get and they put in the consent to assign a clause and at that time hope was in that everybody was that whoever that insured is when they start getting claims and from the outside they're going to resist those claims and only a valid claims and the reason for that is because they don't want to blow all their policy limits playing invalid clients and so they have an incentive to work with the insurers to keep those claims that well what happened here if they get their way what happened here is they keep their insurance i hope the court is aware that they did not assign the insurance policies they are keeping their insurers they only assign what they call insurance rights in other words they're telling the insurers that ok once this trust a set up we're signing to the trust they consider you for coverage for asbestos cases but we're still keeping our coverage because we're going to you know carlock aman's us now and we're going to be a big company we need our coverage there's no sign of what that means is they just doubled the risk of the insurer there's not one group of companies now this covered it's a group of companies plus a trustee has a fiduciary obligation to pay claims not to resist anything claims that would be paid and they were valid claims would be paid at least theoretically setting aside for that would be paid if they were valid in a tort system or in the trust system that right say that claims would have been paid in the court system where there are judges and juries and standards of proof and people have to come into court and prove they're hurt and they're sick and it came from this particular assured that's the court system that's what our clients contract for right not a trust system work with me here ok i'm trying i'm trying to set for the side the assertion that oh the trust will pay invalid claim ok leaving that piece over here and and assuming for the sake of discussion that you will in keeping with your contractual obligations you'll pay on valid claims and you would do that in the trust system or in the tort system because you're obligated to pay valid claims right if that's the obligation you've got how is it a doubling of your risk  that set of risk is not something that they are holding onto but that set of risk which is risk you contracted or is spun off to the trust because i'm having a hard time coming to grips with the doubling of the risk as well the first the first point is we have another interesting to deal with and under cases this is the state law of assignment in determining where the risk has been increased that is one factor they look at is whether now we have to deal with two parties and still one moreover we're not dealing with the assured is resisting payments we have to deal with with the trust process and as i said earlier i would invite you to look at this website i don't hear that as a direct response to judge jordan's mathematical question well i'm sorry i probably need to read it would not seem to be a doubling and i'm having the same difficulty the judge jordan well it's not again putting aside the payment because of the profound differences admitted leak between the types of process that are available to you in a tort system and in a trust how is there anything more at stake than that piece that judge jordan's argue when doe question posed the payment of claims that he would consent content or simply invalid and would not but a substantial increase in the risk would that be more acceptable maybe i shouldn't say doubling we're just here you are ok ok we're so there's you're in a different situation as well i mean if it were five claims you might litigate each one of them individually if there are a million claims you might not that again that's right there might be waiting lists that you don't have any symptoms you have to go get on the waiting list and then if you get sick later on you are inclined it's all kinds of responses that various courts have made to this problem this is congress's just let me let me ask the other questions we'll give you three minutes mars because the case has been brief pretty thoroughly i'm going to try and focus my remarks here this morning on and why why should we not import the financial condition until eleven twenty three well i mean i thought joy judge jordan answered his own question in that regard when he pointed out that the supreme court precedent on this issue about importing a section of one statute into another separate statute that doesn't contain that provision is simply not acceptable means of statutory interpretation we asked the questions doesn't necessarily mean that way well i i contributed more as a statement but i mean i but the answer is i believe it is simply an improper method of statutory interpretation and moreover it's one which at least apt apelin hartford isn't urging on this court appellant hartford doesn't want you to say that the sub the letter subsections of a fog have preemptive effect where if you read in in laws relating to financial condition in the preamble they have a much different statutory approach and the london market people have adopted it they break eleven twenty three a into two sets of components what i call the numbered subsections and the let sub sub sections and they admit that the numbered subsections have preemptive effect they have admitted that in their papers and they admitted it here today what their argument is without regard to reading in laws relating to financial condition what they argue is that the subset since in the letter sub subsections are merely illustrative means that might be permissible or might not be permissible depending on state law because they assert the notwithstanding language end simpliciter without reference to the subsections still pre amps consent to assignment clauses and the reason for that is that as judge as virtually every member of the court has inquired so far it proved that section requires that a plan contain quote adequate needs close quote for its implementation and this is a section five twenty four g play so this is a section five twenty four g plan which is authorized by the bankruptcy code that must contain adequate means for its implementation what does a five twenty four g plan here campaign under the statute it must contain a trust is assume all of the debtors as best as personal injury liabilities without exceptions for or qualifications to whether those liabilities are it should liabilities or uninsured liabilities secondly it provides for an injunction channeling all of these as best this personal injury claims into the trust you can you respond in that context that the section five twenty four g permits and is sure that wishes to resolve its coverage issues with a de insured to make a contribution that under section five twenty four g four b two is fair and accurate able to future claimants and if that contribution is adequate for that purpose they will be able to get an injunction prohibiting claimants from doing what the bankruptcy code would otherwise which is under section five twenty four each of the bankruptcy code to which five twenty four g is an express exception in the discharge of a debtor does not discharge or otherwise free any party call liable on the debtors obligations from liability and that's what insurance companies are they are parties that are collabo because they have insured that debtors liabilities and there is no dispute among the parties to this appeal that absent five twenty four g n absent the sign up to the trust and absent a discharge that provision would urge even in you know because companies if on their mind they weren't just the morning it would have been right here what's your response and my response was that the issue of unsettled insurance was simply not before the congress when the statute was drafted what happened in the mandrel case which mr rove refers to is that there was in fact a lot of insurance involved in the manville case this is the supreme court's decision in travelers versus bailey addresses some of the consequences of that insurance unlike this case however all of the manville insurers agreed to settle their claims like the debtors the mandal insurers were concerned about whether a one o five injunction under the code would adequately stand up to potential collateral attacks from future claimants on due process grounds among others so they went to congress and they got a statute passed that essentially said well even though there's problems with definitions of claims due process and futures will created a structure under which future would otherwise potentially not be discharged in bankruptcy can be instead channel to a funded trust and that insures that are also contributing to that trust can receive the protection of an injunction but it didn't even they didn't even proport to address what other assets of a debtor could be transferred to a trust as part of the debtors contribution keep in mind the assignment here is i think it maybe was judge jordan mentioned earlier or maybe it's just your record this these insurance rights protect that corporations assets from these particular kinds of claims and the beneficiaries of that protection are those that the corporation it's stockholders its creditors etc rhodes argument there the counter to that is that's why companies buy insurance but insurance companies sell insurance to companies with specific limitations and risk analyses in mind and that if congress had wanted to steamroll those expectations in the way they say this interpretation one twenty three would roll over him it would have done so more plainly it would not have said to an entire industry you know we know you you insured these companies with an lease there is an insurance neutrality clause that preserves it for state court litigation every single the fance of the sort that your honor has just and mr roach and misspend now we have articulated earlier except whether or not the successor trust can access this insurance coverage if the trust pa claims that are considered to be invalid or to generous they can assert defenses to those claims on the ground either that they were denied their claims handling rights under the policies that's one defense they'd have they a certain stake let occasion that they'd have not consented to the settlement made by the trust of those clients as another defense that they have in state court litigation that is preserved that the insured here the trust did not cooperate with them in the defense of those claims that's yet a third defense that they haven't state court every single risk that has been articulated by counsel for any happily and this case is provision that essentially to use an example that i think was taken from one of their in opening briefs it would prevent the mom and pop grocery store from selling their insurance coverage to general motors here the liabilities that are being sought to be brought against this coverage are liabilities of the insured the trust has no independent liabilities it's not general motors the mom and pop grocery store is the federal mogul products corporation and the trust is still the mom and pop and with respect to this idea that they're dealing with two e the channel an injunction protects federal mobile products who according to mr rogan retains all this wonderful insurance from being sued by anybody their bar their enjoyment so the only entity there's only one  and that's the trust and there's only one set of clean liabilities the federal mogul product historic liability and what these insurers want to do is to go to a state court judge and say well you know we have this boilerplate provision of any assignment we're protected on every other ground but this the trust is not the scene in a t as federal mogul products and that in and of itself is a reason why we can walk this coverage was questions ellie you recall that questions going to the ninth circuit's unions and whether as a matter of do that earlier with other sections preempt the assures want to create this dichotomy under which they greeted eleven twenty three a preamps but this agree that the subsections of  preamp and they raised what we call the parade of horribles you know violation of any trust laws sale of drugs to minors transfer of liquor licenses in violation of public health we have a sensually two responses to that one is the one weighed out in our brief which is essentially look this is the way congress wrote the statute it's expressly preemptive there's plenty of case law such as the mid d case just as an illustration where courts have taken statute bankruptcy statutes which on their face gave very broad authority to a debtor and limited them through the application of eleven twenty nine and three in some instances or just to be application of of what you might call a common law public safe and healthy exception to otherwise preemptive statues and so far every court other than characterization at the end of the day that there is a mechanism for preventing abuse i would that preemptive reading is statute and judges do that sort of thing all the time in the supreme  affords if this panel were looking at this case and is a search for a limiting principle that is that we didn't find satisfactory answer in the plain text of eleven twenty three a as being and expressed preemption we were insist look beyond that for some limiting principle here that would be the limiting principle that you offer that's a i understand though i know this scheme i have another longing principle which i what i call the narrow reading and which touches on some of the points made by members scored earlier going back to what five twenty four g requires we to i talked about it requires a trust it really requires an injunction protecting the de and other protected parties against future claims from which can include insurers it requires that the trust treat present similar present and future claims substantially the same manner i e there's got to there's an equal treatment provision in five point four g form for the trust and finally it requires that the trust be funded with sufficient assets to render the issuance of the injunction against future claims fair and equitable bus in summary for section five twenty four g plan to provide adequate means f implementation it would have to provide for one trust to a channeling injunction three adequate trust distribution procedures and for adequate funding to render it fair and equitable we submit that if there was a state law that for example prevented bestest enter from creating a trust or in sad that the future claimants could sue companies without regard to whether they had it whether there was a trust or not or that said that  you know you couldn't have trust distribution procedures that would treat presence and futures in substantial