court my name is andrew grosso and together with my co counsel mr are known siegel we represent pax fire incorporated in this appeal from an adverse judgment from the united states district court for the southern district of new york this case actually arises from a convoluted collection of cases prior it started with a class action filed in august two thousand and eleven  which unfortunately the timing caused the failure of a cell of approximately ten million dollars of my client pets fire was in the process of being sold to zero cola competitor packs fire counted with counterclaims unfortunately the sale went under the company one of the bankruptcy and the company eventually went out of business for all practical purposes except for litigating these cases no proof of claim was call that operation of law it was expressly were recognized by miss feist and her attorneys that their claims were extinguished and i would like to read from the record specifically page receipts that the fact understands has since been extinguished by pax fires bankruptcy are not relevant to pax fires defenses in the extinguished lawsuit the basis for the extinguished lawsuit or the defamation claim successor now that  different issues that were raised that were at issue that we can hear on there were a number of different issues up near at that point and an examination of that stipulation  shows that the forgo other damages related to counter claims among other things and limits its pacifier limits as requested damages i don't see how this wasn't a compromise or settlement of some kind that severely undercut your position that there was a favorable terminations in other proceedings you run of the state if the stipulation has a preamble in the preamble it says acknowledges that there are her claims are merely to be used as a set off then there are a number of other issues that are addressed but she had already conceded the point that her claims w your client was parked a party that stipulation right yes obviously whatever she said earlier that you've quoted was itself  and i don't know those circumstances there would have been a disposition on the merits and you could've shown a family terminations if you'd won but up to this point up to that point no favorable terminations seems to we have we have her saying the following in her objection that the court order that it damages related to her claims are limited they are conceding the point but under but they they can get an offset and that's something of value that they could litigation for if they put themselves in this position they did not have to do that they could have filed the proof of claim and continue to litigate they gave up not quote put simply miss feist's can no longer assert her claim seeking full damages as we know now explain her claims remain miss face continued to prosecute her claims in this case from the st day of the case to the last day of the case they point to as basically their own their only information they point to the fact that mystifies did not file a proof of claim in the bankruptcy well we've put the list of creditors from the st day of the bankruptcy in the record and there were one hundred and twenty creditors and pacs fires e matthew press absolutely may put the quarter matthew press for the richmond defense which include betsy feist who is the name plaintiff in the underlying class action litigation and i'm joining my colleagues in all their arguments i just believe my colleague was beginning to say this if that were the law then any time a defendant declared bankruptcy it would the plaintiff would be forced to pursue proof of claim even in non economic lane merely to defend themselves from a potential malicious prosecution by the state of that debtor that cannot be the law and in particular in the case of an of a name plaintiff in a class action this would be a turmel disincentive for anybody to do whereas it says on january th two thousand and sixteen misfires filed a response in opposition to the motion stating important that she has no objection to pax fires requested limitation on damages only then is there the stipulation under that is the caption the stipulation and it says it is hereby stipulated by and between and between the parties that was not part of the stipulation that was raised on regard to the injunctive relief we consider that very important important because that was what the plaintiffs in the class action were supposedly seeking to stop packs fires business model by abandoning their request for injunctive relief which was still alive since pax far was obligated to help in the operation of contracts after they were sold to their competitor zero call by abandoning that request from jump destroy their entire case they took away nothing after litigating with pacs for five years they lost and they lost in circumstances where it was quite clear they knew that they were going to lose their their expert witnesses have retracted significant portions of their or their testimony where they were actually doing that aside if they litigated the can or claims of the clan or counterclaims were alive and then she had been why did they not seek to make it take a position that would have been law for everyone else who was in maybe fine i mean you made about them but what is that with the do with the favorable terminations well that was there were about ten companies that were named in the preamble to the class action you know only two companies were actually sued one was r c n one was pax fired but the other nine were named and they could have stopped the other nine from using this