financial institutions out in this transaction and other words how can we determine if the payments were made by or to any of the protected entities without seeing the terms of the deal have a split decision in the eleventh circuit that has gone your way and you have legislation which i'm going to say could be read maybe the way you're reading except no one else is doing it or it could just be special interest legislation for the financial industry and it wouldn't be the first of those kinds of laws that actually say we're just going to keep it simple we're going to be literal and we're going say that if a payment is made to a financial institution which certainly funding the escrow account would be then that's that well that's certainly and we don't disagree that that is certainly a literal interpretation of certainly one reason but not necessarily the right reason under these the principles of statutory interpretation that we set forth and in our brief the want to go back real quickly to the point you made about the fetus because the district court had a footnote about the fees and i think that's an important point and that's important distinction is that to the extent that the debtor paid fees to either the escrow agent or credit suisse for their for their role that's entirely different that's a transfer of a different type of interest in different property we are not trying to avoid that transfer and that that there is two different transfers to the extent they received a fee that there would be two different transfers helps to make the point is pleased give us an example they say that transaction where those words would come into play in other words where they would make a difference to the out where they would make a difference to the outcome here because they they would not make a difference in the outcome here because no one's arguing no one's taking the position that any of these transfers were made for the benefit of one of the a protected entity now section five fifty says companies through which the money passed on route to america and so one of them credit suisse that's the bank right correct so can credit suisse the whatever role that was serving for for america no one's trying to get that money back for them for all we know they might be paid again for the transfer back again to to the bankruptcy estate sure that's right but there's there's two reasons why chris was can be harmed congress took care of this with both five forty six and with five fifty those two for those two provisions worked together five because credit suisse is not a transferee or a transport it was not it was not in steel who lost any interest in and property is not a transfer you're a transformer he can't be held liable for under project transfer liability also because can't be held liable as a transferee further as that will stepping into the legislative history just for a moment when the when the when congress originally passed five hundred sixty eight did so in response to a case  called segalstad and siegel's and the issue is this precise question is whether a financial intermediaries in the commodities markets could be held liable for friend project transfer liability as a transferee well the court says or the congress that we don't suisse has protections on both sides it has protection from five hundred sixty because if we tried to sue credit suisse we couldn't we couldn't receive we couldn't we would lose on five hundred sixty and also they t essentially saying that this is the same as if the people representing valley view downs had gone to to marriage you know with a lot of suitcases full of hundred dollar bills circuits that if you if you are if you think ok let me say this correctly that congress intended to draw this distinction with the between the transfer barred from avoidance but what is the indication that congress and visits to a case like this what is well i think i'd put it in the negative is that the congress wasn't concerned with a case like this a case where the financial intermediary was just a pastoral congress was concerned with protecting the securities markets this any better than to find a sensible solution while i talk about congress as well this many so called statutory interpretation that the sensible solution is to understand that when the financial intermediaries are really just processing wire transfers or checks or whatever it is they do these days electronic transfers of funds there's not enough int kind of interest in the financial institution to mean that that's a transfer of the count's you know from customer of bank to bank and so your argument as i understand it is that you know i wonder that originally anticipated by congress when this particular statute was enacted and then subsequently amended your honor site i would refer you to the decision that was reached last week the tribune fraud litigation by the second circuit it's not cited in the briefs because frankly it was rendered last week which dealt with section five hundred sixty in a lot of detail and frankly dealt with transactions like this one which is a  circuit has already been on record for this so that's not too surprising what policy reason supports your reading of the statute in other words probably congress have wanted to protect these kinds of  securities markets from the fallout of bankruptcy when they were in this racing industry well no you are i think that congress intended to protect investors generally and not just financial generally use mechanisms to move money unless you're what i was alluding to before unless you're a drug dealer or something you are probably going to in some fashion or another and use the facilities of the financial industry and if they get paid separately for their activities whether it's setting up an escrow account whether it's simply carrying out client instructions for a wire transfer i don't see where they have any interest in i don't see the the benefit of all these people you know a commodity broker or financial institutions so forth so this is not a settlement payment it's being made to your broker you know or to your financial institution which is going to perform a entrusted with going to the various shareholders of bedford downs collecting their securities transferring their securities back right to the data services that they perform for separate consideration that the trustee is representing he's not trying to to claw back but you know that's every securities transaction generally speaking whether it's a small securities transaction so if you're a large if you walk your securities over to the entity that bought them then this doesn't count or if it's judge posner's armored car those being the money around your honor i don't disagree here if you're absolutely correct the statute i would so what sense does that make is the next question to draw that distinction your honor i would guess the sense that was made by congress is that right and as an ambiguous statute it is up to somebody apparently us today to make some sense of it and so we can just go straight to the heart of the matter i guess what i look at the statute and i look at leverage buyout transactions like this one whether it's small or large the money ninety nine point nine percent of the time is going to move through financial intermediaries of some type and so when congress drafted the statute they looked at that at at these transactions and said well we don't care if it's publicly traded or privately traded we want to impress upon the securities market which includes both publicly and privately traded transactions that we're going to protect them so that as an investor when i receive a payment in a leveraged buyout transaction like this one ain't your cruise well i don't know if there's a danger to credit suisse sure i think there's a danger to the financial market why because if i could immediately turn around and unwind all these transactions you know this one involved fifteen shareholder so you just give them instructions you know to you in fact you give merit instructions to send money back in the financial intermediaries perform their mechanical role the word that you just used that i wanted to seize on for a minute is the word intermediary because we seem to be talking about a transfer and it's either a transfer from valley originally to merit  or as you would like us to say it's a transfer to everybody who has anything to do with it it's a transfer to the clerk in the bank who walks the instruction over to the wire transfer department it's a transfer to  whoever it was who sat there at their computer and set up the escrow account i mean they're like probably fifteen transfers in there well here i'm not honestly saying that we're we're looking at every participant i at the economically relevant transfer which is the one from valley to merritt well your honor it's actually a transfer from rally to the end all of the shareholders of the cull the words i read about the sixteen point five that went to sure your i to be contesting that i would suggest that congress was looking at the broadest possible way to protect the entirety of the financial market what is there is that it has the risk would be run or that the fourteen shareholders in this situation turn around and they invest the money that they receive back as part of an arm's length transaction and you know i mean it's merits beric all right  has received merit has received money from a bankrupt shouldn't have received and you want to be able to keep it and you want when you think that that hurts the bank that's what i don't see where it would hurt you know that only i can see where it would hurt merrit if its shareholders go off and fritter the money away or whatever they do to it i'm not sure how that hurts the financial institutions who stand the two of them in this of voidable transactions you can say well if you take the avoidable if you take the money away from the recipient you heard the recipient and his dependence and this and that  other so you would just be abolishing the concept for the book trans and let me add that you also to the extent you're focusing on merit you're not talking about somebody within the scope of the five forty to bedford downs or merit management so where that is what you're not focusing on is how unwinding this is going to hurt citizens bank the escrow agent and crdit suisse who it seems to me would be perfectly happy if somebody comes to them and says please execute this wire transfer they would say fine that's what they were in the business of doing i don't i guess we are and again i think we're perhaps talking past each other i don't i'm not focused on the risk to the bank but we need to because there's a lot but i shoot covers transfers to the financial institution that's what this case is about what your are my statement would be that was the mechanism by which congress decided it would be the easiest to separate out securities transactions and just type in order to protect the securities market if i can but around here if your reading of the statute is correct then why even mention financial institutions why not just provide a safe would suggest first that again i think congress looked at that list and said well most transactions of a certain size that we want to protect securities transactions are going to move through those entities and i'm sure there was some as this court suggested earlier absolutely no harm that you can point to for either citizens bank or credit suisse in this they mechanically executed their instructions in one direction they could equally mechanically execute unwinding instructions in the other direction iran or i completely agree with you i do not see any damage to credit investors to merit the worry you it be the investors of merit the investors like that but that's what's so ridiculous because any time there's an doubt has investors but you don't protect the investors the money has to be given back to the you know to the trustee in bankruptcy you are there was this any differen who has stock and people on its stock the doctrine of the avoidable transaction simply does not apply it only applies to any of these receiving money who don't have stockholders no no you're right your proposition and it's not your honor that my proposition is that at the end of the day if a company the company that is being bought out in a leveraged buyout transaction has shareholders right and that company's shareholders  understand you represent merit but your only concern is that no my concern is with merit as a shareholder of meant for dollars or i'm not the individual shareholders below ameri i have to ask you this question if i hand a five dollar bill to church and ask her to give it to  to judge because it was made you made the payment made by it was made by you to judge wood and the judge would made that made the transfer to judge posner but that does not mean that judge wood is a transfer or transferee within the congress was concerned about protecting the securities it securities industry to the greatest impossible why have the entities there and i think the answer is obvious from my position at least is that because congress intended to safeguard to apply when those one thing we just we didn't strip stress in the briefing is the two other safe harbors and five forty six which help go to this point five forty six f refers participants and finance just france in connection with swap agreements again connecting the type transfers they're concerned about with the type of entities that would be partners for those contracts so it just and that is for those reported i won't go into all of all of the sections of the time you keep wanting to do that right and then also to judge posers point as far as the same is true you made the comment that the same is true for for any  downstream effects that's the nature of our legal system likely more questions that are now apparently not thank you very much thanks to both counsel we will take this case hundred five minute