the government the g m itself so the coursen was on g m as an a m d and the coercion was on the bankruptcy court in connection with the requirement that the sale order include an injunction and it was on the district court because the same arguments were made and that was the only issue there was up on appeal where in the complaint do you allege that g m was called all g m was coerced by  the in connection with the meeting right or not but i mean we're what paragraph because i didn't see that it was very clear from the complaint that any such allegation was made you do allege that the district i would certainly ask for the opportunity not only to file the nd amended complaint which i think is critical to the jurisdictional points but also to and make it clear that the government told g m and you can certainly infer it from a number of the paragraphs in terms of getting rid of wagner putting in henderson telling henderson what they were going to do and and basically saying you're going to file bankruptcy or we are cutting off funding so she ran or in the complaints described it if you're complaining about improper action or action by the federal court you have to exhaust your remedies by going through the regular court system not raising your complaint about it taking in that context which you started to do with the district court held that you didn't do it properly because he's worse they ultimately got this so how is it that with respect to allegations that the bankruptcy court and the district court acted improperly or were course the why isn't that something that under our cases has to be taken through the federal the government conditions the financial assistance on the rd party taking away property rights and that can be if coercive taking yeah but is not a rd party well in a way it is because it is representations are being made to it and the end g m was conditioning the deal upon a provision in the sale or said it's free and clear and so the argument and the facts are her that g m that the government didn't care it was financial and different angeline different to that issue but it was telling the court that it wasn't to close and in fact it wouldn't have cause i think it probably even if it wouldn't have close but the fact is that they were indifferent to the result and so when you force a judge to sign something because what judge is going to risk the national economy of this which is what judge gerber said he was doing who's going to do that they're going to sign it and ultimately and so then you say ok well why didn't you continue the appeal where did it go ok well here's where the appeal went this is why the trial court is so wrong because the four days between jul ginger white th and july night was not some four day interlude she called i went back and looked in my time and twenty six hours in the st two days after that decision came down to say that my clients were sufficiently convinced that the order was going effective that there was nothing that could be done is couldn't be further from the truth my part but i said really no idea the district court because i did take the appeal and in fact judge kaplan heard me on july th by video conference from chicago and put my name in the opinion as file is having an appearance but it was the day before and it wasn't member of the new york bar in the federal court i couldn't there was no way i could use the resources but yes i was claims for making the exact same point we were which is you can't get rid of the successor liability claims because we were saying they're even though the plan was improperly entered rule sixty before doesn't take away the jurisdiction of the court to enter that order st so they have the right to enter the order but what got me so  yes they were commercial men have the right but the question is in the question written in a indeed is just because it's a three hundred and sixty three dollars sale doesn't mean that it's not a taking and that's why they brought this case had to coercion when you said in a indeed that coercion is a necessary but not a sufficient condition so something else is necessary and what's that elsewhere of raikkonen makes it very clear that has to be a loss it's almost like double entry bookkeeping right you don't agree with it was physical because it was the government giving an order to the philippines to do something and then they came in and took possession and everybody said ok but what's how is that any different they wanted the the trial court said that the right is the is so highly contingent because it is the product of two discretionary acts which are basically want to squash an area which is the bell but for the bail out you have nothing that's work that's work like i think that's where i read it and my answer to that his how can how can you say that there is no property interest in a successor liability claim and what we were which is years and will years or so contingent upon a bail out it's nothing but that that's your but for analysis applied in law for loss causation apply to the existence of the property right and so we went so we said well has to protect something you can't just protect your right to own a title and you can't some unexpected benefit that you talked about now it has to protect my life i visited my parents grave site yesterday and they rest in peace and you know that land is the only land that matters and the only time it matters is when you don't have your life these people's lives were at stake that's more important than any land that any person present anything out there and so to take away the right that is inherent in your injury to go after alter egos to go after successors to go after anybody is trying to hide behind a corporate fiction and pursue the end and  say that they're not responsible doesn't work and so that or i do there is a good deal of strength to what you say thank you but the concern is the path of matter if they're doing a proprietary capacity and if they're at the in a coercive manner then you may have a case and and then what was the court in that case so the judge the truck court says well we're following a and d well a and b didn't say anything about changes the well established path of appeal of bankruptcy rulings because this court has said that the fact that something is permissible under law in bankruptcy doesn't mean that it's not a take it we also have cases that say if the taking is an action by federal court but that's not what you're talking about here you're talking about act by the government where they're just going too far in the context of the financial bailout these are unique circumstances and the fact that the president point think the government affected a taking of the bankruptcy court that the government effectively taking because who benefited from the judge doesn't benefit from it taking so the idea of a judicial taking away doesn't make sense because the the there's no the bench isn't benefiting from this but here the government did benefit they got a dollar for dollar benefit because unlike every other kind of dealer claimed the bond claims there was no were no other claims that had success or liability rates the way this transaction was structured other than the products claims they were targeted these were the politically sensitive liabilities we may take it we may not when they went to the board you when the government went to the board in thirty seconds when the government went to the board made twenty nine made twenty in twenty nine and said approve this deal chrysler and that's what the complaint says is the financial equivalent of holding that that's economic drug money that's what sebelius says when the government to gauge their conduct i don't care who it is and that's what you're q that's what you're that's what your case says and that's why i think you m under the a in the auto sales framework but since the bankruptcy court sale order was entered on july th of two thousand and nine by definition any coercive act by the government especially with abortion yeah i think they're addressing my question however the timing of that is crucial so plaintiffs just said that oral argument well look what happened at the may th two thousand and nine there was a g m board meeting that's well prior bridge life at the hearing of the bankruptcy court between june t sale one of those was the under three hundred and sixty three af certain interests and property for purposes of the bankruptcy code including plaintiff's personal injury claim were excluded as for the purposes of being successor liability claims against the new g m again all of those decisions happened prior to the bankruptcy court approving the sale of the i think they admit that that the coercion heard earlier but that they say that the damage looking at the economic value of what their plans would be expected to be work after that sale order was entered one would expect you know if there were a fictional futures market in their claims the value would have gone down i want to notice that they could have actually filed suit in that four day period filed this suit against the united states so in terms of the without being towed there well you don't really claim this is ripe and all of the other things that hadn't yet come to be be concrete in order for you to be on sufficient notice that something has happened to you that causes your claim to occur so you're saying that they could actually have filed suit against united states the takings claim on things that just straight forward in standard and fly like a premature suit you're saying it was would not have been premature exactly to position the calculation of damages specific claim defined by the court of federal claims which was based on the a and the auto's sales framework of alleged coercion of a rd party since the alleged coercion of g m was complete by that point the economic impact would have been felt by the fact that you had the change in legal relations based on the entry of the sale or and so you're telling us that while it was still pending before the bankruptcy court and the just record and whatever the path of appeal might have been from the district court there was an actionable a cause of action against the united states because of their leanings so heavily on the terms of the bankruptcy based upon the allegedly economic coercion of rd parties based on that the terms of the bankruptcy under the and the auto sales framework yes however given the way that their claim defined that's the only claim that the federal claims found to have been plausible based upon the complaints and in terms of the economic impact that that would have been even though not realized down to the last you know dollar and cent eventual possibility of appeal which was it wasn't going to stop the sale since they didn't ask for stay or the be closing date had not occurred yet for the five days if i may turn to the property interest question  process the court concluded that it was something that would give in here than the claim in a way that the and the auto sales the dealer contracts did not have that as a background principle when you're rejecting the a right to to to to exclude well under the and the auto sales scenario the court ruled that the contracts in that case were the property interests that gave standing however they differ from their claims here in that  legal relations here there were unsecured tort claims also the contracts would continue to exist at the absent here there's ever needed to be the creation of a new entity for those successor liability claims to go to as opposed to you know g m and then sold to some other entity be a very different question so that's a difference and a different type of structure that arose only as a function of the three hundred and sixty three sale that differs these popper the interest from a in the auto three complaints in this case each time and we raise the issue of there are not pleading lost absent government intervention right up front they filed three complaints each time they go further down the road of saying the government had no choice but to bail out  m they make no argument and make no plea no facts after all after and the auto sales was issued to say that their claims would have had some value absent government intervention they're saying quite the didn't reach it because of the statute of limitations and property interest questions but plaintiffs certainly you know have not met their pleading burden on that question even if you were get to get beyond the scotch of limitations and the property interest question they have not plaintiffs as the court questions vindicated have given various definitions of what their claim should be so in so far as their claim was pleading a judicial taking that would have been passed action limitations we said in our pleading that if w are talking about is coercion of g m along the lines of a in the auto sales that would be time are if they're talking about a judicial taking that would be time bar but that has the elsje aren't other problems so we did not file a motion to dismiss based on the statue of limitations question we did what about the argument they didn't mean that you haven't a lawyer as he requires busy that there was an injury from the course of action that was taken in the words that you would have been worse off liquidation taking which this is secondary to the actions here of the government and proprietary capacity where they made money off of our clients because remember when if if if there were if the reduction of the two hundred million dollars its own it is let's say fifty million dollars a year which is what the evidence was well their income goes up by fifty million dollars a year which means their stock goes up sixty percent of that by four times that amount so they profited at the expense of my clients and before the court a federal part of this issue was yes but yes yes absolutely and as to the rest of the property interest i said i would explain  thought the property interest was and why the bankruptcy court has basically held that this is a property interest in the meaning of the code and not some claim because the difference in bankruptcy is that claims are able to be discharged and and at a sale can be free and clear in a plan but it can't be in a sale that's the whole point of reorganization it has to be claimed so they say in the sale of the three hundred and sixty three held sale it has to be property interest and they go back to butner what's a property interests it's all the same like an equitable servitude there's there's an element of successorship liability that goes with the asset and in an equitable way and so therefore they can be extinguished now they come in and they say it's just  it's nothing to do it on these and these are just not they're not unsecure tort claims these are claims that went with the property and that's why they are property interest in the bankruptcy code and that's why if you look at concentric circles if you look at the venn diagram of the bankruptcy property rights inside the takings right are they outside the takings right over some takings rights that are not bankruptcy a bankruptcy is in ram ders nature and how can you possibly say that the constitution doesn't incorporate all of those rights that  to go through the whole record i was involved in the bankruptcy case thirty five gigs of data four thousand documents from the treasury all that so we i was only aware of that but this is a whole different issue i want to make sure that this was done properly and it without any question under all of your case law cuban attorney goodrich copland r r r e and all of them saying there has to be a manifestation of the right of the of the taking it right and the question is has the government gone too far here you're dealing with people that had no safety at the dealers or one percent to go into the order the order says that the dealers got ninety nine percent of the dealers consented to the wind outs only one percent of the takings case of the dealers is of the one percent and if they have a claim how can my clients not have they were in a condition to the deal the restructure of the deal and that was always a condition to the bank they didn't the government didn't come to the bankruptcy court and say reject these contracts and why was they so nice of the dealers anyway we just rejected connally's wrist claims was a special law the dealers i don't understand because they didn't want all these claims that you might get three thousand dollars dealers a one million dollars or three billion dollars now of a sudden you're into thirty five billion dollars of claims and they have to issue and present more stock so there are all these calculations that are going on behind the scenes that we don't know about and that's a nd circuits and in g m it's a paoli center case you don't know  all and taking the downtrodden and trampling on and that's not what our country's about you don't go to a judge and say i need this is a government and then it turns out that you really don't and you do it was all a ruse and g m files a motion you tell g m filed a motion