oral argument of an appeal like this one within steps of the independence hall where the case involves a fundamental bedrock principle of our entire judicial system such as due process of law and this appeal raises a an important and fortunately unusual question which is when a chapter eleven bankruptcy debtor violates one of the fundamental requirements of bankruptcy by failing to complete a diligent review of its own books and records to uncover all potential claimants against and a review which would have revealed the existence of almost fifty prior lawsuits involving precisely the same product that caused devastating injuries and issue in a case later brought against it and then as a result of its failure to complete the diligent review required the debtor nors those claims completely in the bankruptcy board notices it circulates all right so the claim revolves around the notices right correct we've got a couple of papers of national circulation and one up in rochester correct as i understand it you're not arguing are you that it was improper to publish the notice of the party in those particular that's exactly correct amount of money here is not the matter of notice it's the content it's the content ok if this is not about the timing of the notice or other procedures your claim is the should have been more specific correct and how do we pronounce this pan to pay that's correct ok so and what you are claiming is that the due process for clause required that that notice sort of put out a beacon to folks who might have had problems as a result of the panel pick where as in this case there is substantial evidence of the existence of potential claims from prior lawsuits almost fifty and by the way including actually almost seventy five different claimants because one of those lawsuits the ave case  which appears from the very st page of that case involves twenty five dollars plaintiffs in that case alone so we're talking about a total of almost seventy five dollars claims brought against forty years evidence in his own books and records current number one what is the what is that graded degree of specificity based on and number two when you have a company like kodak which has many lawsuits  in many different areas are you asking us sensually to change the way in which publication notices are made because if it's good for pens of pay i over ready that this is a process that has been filed where as i said before there is substantial evidence in the debtor's own books and records and there is a substantial not just one or two but a substantial number of prior claims for example let me read from a a quote from the shim tour a bankruptcy case that was quoted and relied on heavily by kodak in this case this is actually from an earlier ruling a published  court have this court described sham tour as bankruptcy notice and what is said about the to food for flavoring companies throughout the united states from one thousand nine hundred and eight to two thousand and five sham tour of bankruptcy bore notices advise potential claimants that if you were exposed to the assets ill and if that exposure directly or indirectly caused injury that becomes apparent either now or in the future you may have a claim under various legal theories for damages through the combination of these statements jim tura put potential the assets will claimants on notice that one they might have been exposed to die assets while working at the plant two they might have been injured by that exposure three they would have a claim even if their injury had not yet manifested itself and for they would lose their rights to been exposed to pan to pick and suffered injuries as a result you may have a claim against the quota corp you want something functionally equivalent to that maybe not the precise words but some paraphrase functionally upon us this is the bankruptcy court to see that's correct but if it's not about it might be persuasive but it's not binding that's up to look a so we would have to extend existing d law you're not aware of any binding precedent from the supreme court or the rd circuit that says that such and such wording is required right no would have any court of appeals that has said such wording is required but if you if you look at the  factors that this court carefully considered and carefully a stab and you analyze those factors from the standpoint of due process of law you see overwhelming support for the conclusion that in this case there was not due process and i could ask another question so your client was diagnosed with how to pronounce it correctly dated yes in two thousand and fourteen correct and upon being diagnosed your client did some research and only then learned that he had probably been injected with pen to pick your client has not did not know the word panta pig didn't know what it was he learned about it after the two thousand for the diagnosis that's correct but by then the bankruptcy had already been consummated so how would a notice that mentions a chemical pen to pick in two thousand and twelve have helped your client who didn't what has to be shown for example there's no way we can tell that mr sweeney's prior physicians would not have seen that if if that notice if it had mentioned ten to make and called up mr sweeney and said hey you know john you're one of the people that may be involved here or somebody else who knew about his circumstance so we can't discount that is there anything in the records that would tend to suggest that by any of his physicians or honor with all due respect the question you're asking i would submit is overlooking what this court has recognized about this entire area of the law the court and even in the all of the especially cases most of those that language provision was made for future claimants when there was latent injury when it was known at times when you had been pleaded that your claim is about the quantity of the notice you never preserved he never argued he never pleaded that there should have been some separate provision for future claims well your honor we actually i don't know did you did you argue in preserve this in the district court unlike the the johns manville case which is incredibly codec has the best of the did simply rely upon where there was an entire publicity campaign engaged in a national newspaper national television for the reason the reason for that is the as those claims bankrupted the company that's that's why i say this is this is nothing like that there's no i understood i'm not suggesting that there disputed by by by kodak they engage in the manufacture and distribution of this product over forty years at least as we sit here today we know of almost seventy  of a filed lawsuit we know that the in other countries there have been claims for this exact type of injury so there's extensive evidence that the of the danger of this product that was taken off the market because of its danger we have right in our complaint which is in our appendix the court can read about how kodak spent years attempting to avoid the disclosure of this danger to the f varied to various other measures and failed over that entire forty year period to warn people and back injuries are the types of injuries that can have numerous cause people can suffer like mr sweeney did for years with this type of an injury before finally discovering oh it was that di that was injected into my back thirty years ago or twenty years ago or however long ago injury especially and it needs to be addressed under due process of look principles especially when the debtor has substantial evidence in its own books and records and every single one of the cases that kodak had knowledge of the potential and opaque claims we do and that knowledge is evident from of a declaration provided by that when you count the published cases they forgot to mention is forty eight and again when you count the fact that there was twenty five plaintiffs in one of those lawsuits yes kodak was was well aware and allege in our complaint that they knew as early as one hundred and forty five of the dangers of pencil pick and never revealed those dangers to anyone just like they never revealed them to the bankruptcy court so there's a whole body of evidence that was never before the bankruptcy court in this case because kodak never thought to mention it or to bring it to the attention of the bankruptcy court we we understand mr myers your your if you get a chance to to try to answer judge bemis is question on rebuttal the court appreciate that but yes i think we appreciate that you're you're arguing both  much let's hear from mr ward mr myers has already indicated that there were millions of people across the country or the world who got panta pay who were injected with and we according to him seventy five  s this bankruptcy was not involved in trying to get out from under litigation for example w r grace or john's man and i would also point out that one of the one of the cases that was just cited by mr meyers the computer case in the that is very significantly different because in that case part  of bankruptcy was to put a close to litigation involving in fact there was a trust there were two hundred and thirty seven dollars claims in that case there was a trust that was established to sixty five million kahn then who formulated pan a pig using a family business in it so the circumstances of all these cases are quite different and judge greenaway you raised a question that was to go back and look at each of these chemicals and then list potential damage from those chemicals were there any other chemicals that resulted in forty eight dollars lawsuits lawsuits involving plaintiffs there were it's if one of those chemicals manufactured by kodak created sufficient litigation it would seem logical to presume that the notice should mention that chemical in the board notice i suppose depending upon the circumstances disclosure that's easy in terms of providing for future latent claims right correct so where do we draw the line well i think that you have to look at the circumstances on that because you know due process involves a degree of reasonableness and i think the millennium court was very clear on  that the unfortunate fact here is that notice by complication is not the best it's not going to get to everybody i think the fact that certainly recognized it's the best we have but it's not going to get to everyone and i think in those circumstances judge if you're going to go back and look and require specific notices you have to involve the circumstances of the case here we twenty five years before it's bankrupt so i would say that in terms of reasonableness that doesn't that doesn't add up to the way that a bankrupt company should have to go back and look i mean  to answer a hypothetical i think that there's something that could be even more apparent what about a warranty claim in december of two thousand and eleven right before kodak declared bankruptcy turn on its head the way notices work which according to the morning court has to be specifically to the statute that is being noticed about in our case it's the bankruptcy statute that is going  have had an obligation to do that though cont'd because the way that you've described it and as i understand it those are those are contingent claims perhaps that may come to roost but but the same thing is true with a warranty claim and i don't think that in less there is something actual about this you know this question of specificity in the notice it really does excuse me let me just step back the question of specificity in a notice in a case in which litigation is not the reason for the bankruptcy  far as to say under similar circumstances as we have here that once it was determined that the plaintiff was an precipitation unknown creditor then it followed there is easily that constructive notice of the bankruptcy was sufficient under those circumstances and i think that to hold otherwise in this particular case would involve but there are other considerations too for example how long ago were these mass torts when was the last one how how many when we say mass tort what what does mass tort mean how many claims did there have to be i think that that this is a this is a situation that would call for some judgment that's involved and of course like the court did in the grossman's case i think that the content of those would have to be subject to certain criteria and factors to look at we don't have the law on that and and as a result i think that what we what we have to look at is what the supreme court said in line about constructive notice which really hasn't been changed since the fifty's when that case came out and what this court said in its temperature on under that ru bric if it's not amassed who are the bankruptcy code is really going to visit in justice upon people with latent claims right isn't that the upshot of your argue that is the upshot  argument i don't think that we can sugarcoat that in any way your honor but they might say those are people people who get sick you know earlier are going to have a recovery and people who get sick manifests itself five years later are get nothing that's that's what the bankruptcy code requires i think it does i mean the whole point of the bankruptcy is to give the debtor a fresh start except that due process imposes some constraints there and we've recognized repeatedly in the f h a right versus when scorning grossman's and jones kemah tron that there may be a role for setting aside some you know having a representative appointed who can at least argue for setting aside some money and you know if you ask us to draw a hard and fast line what semester we have to come up with a number but if we just set out a standard that requires a district sitter whether to have a person representative then it's going to depend on the you know doing some actuarial calculations what you knew what you reasonably should have known why isn't that the way in which due process imposes a constraint we've suggested to graffiti because i think that that in of its its documentary evidence about the manufacture of io found the lady to out on it had not what it did have was some records in it in its health and safety department about the existence of lawsuits that's the only source of information we had because by the time that kodak filed for bankruptcy in two thousand and twelve there wasn't even an employee left at kodak who had anything to do with the manufacture of i assemble a so its knowledge base is actually quite slim and that has to do with the timing of all of these cases we don't have a great record on this right this wasn't doing well your honor i would point you to the great ho affidavit in which she made those specific statements so great record i agree not a great record a record yes but your point is is that the paralegal your report is the reason there is a sad record is because this was a non issue for the company the company had a lot of other issues to put into bankruptcy it had nothing to do with that's true question we did not state that there should have been in this in this brief because it was really not necessary we were to what we were trying to point out was the fact that the five hundred and twenty four g trust was not the only part of that six grossman factor there were other circumstances that the court did not consider so but we did make the point of that  k was well aware from both the published an unpublished cases of the latent nature of the injuries here for example we point out that in the style of cases which is one of the published cases there was a latency period of something like twenty two years in the dura case there was a late and see period of something like eighteen years so we certainly preserved or right  i would submit to to talk about the need to consider latent injuries here secondly counsel has really misrepresented to the court with all due respect  thirteen of the very opinion that he cited as of the board date the debtor's had no knowledge of any potential bins in exposure claims relating to which go mineral spirits used by safety queens had no knowledge of those that specific type of benzene going over the fourteen of the site specific notices identified benzene as a potential contaminant at or near specific facilities where it was used as a room material none of them identified benzene containing would go contained in would go mineral spirits or used in safety clean parts of washing machines and solvents as a potential contaminant so the point is fourteen different notices mentioned been xeon because those were the ones that the debtor knew about from it's own books and records there's where the line is that needs to be drawn now the debtor as as they pointed out in jim tour the debtor had no manufactured thousands of products let's say they manufactured ten thousand products in they had litigation in five thousand of the products your argument is that the notice should have contained a statement about all five thousand of those products well because you've got to make sure that if there's somebody out there with a latent defect they can they can go through the list of the five thousand products and see if if that was one that your honor a spirit or the court with the court is suggesting is an approach of reasonability and we're not but we don't have a record in front of us that shows that could act was sued with respect to any of those chemicals based on injuries  exposure to those campbell chemicals were latent injuries involved we don't have anything in the record about of the witness injuries of what we do have a record of of for a big company what is really sort of a remarkably modest fully small number of cases over a forty year period roe you said if this was sent out to millions of people and there are seventy five plaintiffs that's not something that would typically i think the court could take judicial notice of this even a large company like kodak can put in something like products liability and kodak into westlaw and i think the court would be surprised to find that all that would come up is about one hundred different cases there's no great burden on a debtor to go through one hundred dollars cases and find a case like stealth which by the way mentions mass tour and class action litigation in connection with with panel pay that's mentioned right in the style case so there's a published case that has to bring a special red flag to the mind of a good faith debtor who is recognizes its obligations to perform a diligent review and reasonable review of its own records and by the way i would point out the d p w encase that we pointed out that we cited that took place in the nd circuit that's a kid that was not a master case that was that was something completely different and i don't think there's any evidence that the  that never even questioned that part of the ruling it did remain the case on another grounds but it never even questioned the district court's ruling on on that part of the case which killed that the  bankruptcy bar date notices were inadequate so again this is this is far more widely and four more easily applied then than kodak is making and i think as a court properly  e might have produced well the most almost all of those chemicals were in the area of photographically equipment i don't know of any other medical product that kodak ever  produced so again the effort here is being to make this so complicated on reasonable and i would submit to the court that there is nothing in the record that warrants that type of an inference in fact everything in the record warrants the opposite inference they had no problem coming up with this information about about these cases to support their motion to dismiss that was done was easy where was the difficulty so again we know that a reasonably diligent review of their own records which they admit that they have and they can characterize it any way they want but that declaration of mr grig house key admits that they had extensive kodak over forty years are we going to say that there were thousands of medical products manufactured by kodak over forty years i don't think so thank you very much