hall our first case of the morning patricia right kevin west versus owens  in finding the existence of a claim under section one hundred one five of the bankruptcy code based merely on the plaintiff pre conformation purchase of shingles the district court did not take direction from the case relies on the following three cases the second circuit case of chicago way the fifth circuit case of lamell and the eleventh circuit case in epstein each of those cases either require or expressed a sensitivity for the need to find a preposition relationship of a sufficient quality but in the relationship here the purchase of the shingles isn't that the it's your own it's our position that the mere purchase of shingles in the context of this type of product does not constitute a sufficient enough relationship whereby the parties had some sort of anticipation we say ok there was a claim but from a due process standpoint we couldn't require them to have filed at that point but even this week just even have an anticipation aspect of those cases that we have cited in our brief certainly do require the parties to have either a sufficient contemplation where a fair contemplation of of the potential for the contingency to arise it needs to be part of the mindset of the parties at the time of the bankruptcy otherwise the debtors if they if they don't have the ability to to conceive of this potential future tort aren't in the position to provide adequate notice to potential victims because they're not able to identify any any class of persons who may be harmed but the new york times notice says you know all persons having claims against owens corning and the right say well gee we have owens corning shingle you know maybe we better maybe we better file something or be on notice that if if there's some problem here we have a claim is that enough two thousand and six when notice of confirmation was being published or earlier when notice our date was being published the prevailing standard in the third circuit was the friend bill case which required that for a claim to be recognized in bankruptcy there had to be in a crude state law claim in existence there for anybody who in two thousand and six or before or prior to two thousand and ten june of two thousand and ten reading notice which defines what a claim is who had yet to have a state law a crude claim would have no reason to try to conceive that's a good argument but to to what extent did you actually make that argument in the district yours it goes hand in hand with rhetoric activity first of all this court obviously is where the harper decision requires a new law to be by retroactively and there's a pending matter of litigation and that's something that the that no one had a clue in two thousand and six that would be any different but it did change in two thousand and ten but you really have to play by two thousand and six rules report that is exactly or perhaps more as a matter of due process or fairness then there are two points on appeal one is that the court the district court did not directly apply the grossman stand because it did not take into account the need to examine the nature of the a ship and then the second point of our appeal is that the court's determination that that due process could be satisfied merely by publication notice under the circumstances of the very unique circumstances of this not place sufficient weight on on the on the modifying words of want to one five the contingent but let me read to restate my question you said that these cases and grossman mean that there has to be sufficient or fair contemplation and in the mindset of it's a matter of the mind set of the claimants not just that the conduct of the de well i don't see that standard in those cases so maybe you can help but actually it looks like in grossman's what it was was a composite which you'll see toward the end of the opinion on page one twenty exposure to a product giving rise to the claim occurred pre partition which the only answers half of our case even though the injury manifested after the reorganization we agree and hold that a claim arises when the individual is exposed pre partition to a product or other conduct giving rise to an injury which underlies a right of payment under the bankruptcy code it on it on who could make an argument that while we talk about the preposition relationship test in piper and the criticisms of that in the conduct test and the criticisms of that that it looked like we were supposedly doing a composite but in fact we could be just doing a conduct test and i don't know that's that i think it's i just don't see well the words and i don't mean to or aren't those are words are informed by the underlying decisions that that grossman's relied upon and if for example if you take a look at the second circuit in chicago way which involved a situation where the e p a sought response costs arising from from circa and those response costs were determined to be pre positioned claims regardless that they were incurred post petition because they involve their release or threaten hazardous materials prior to prior to and chicago i determine that  that they're necessarily discharged any application can't be divorced from fundamental principles of due process and that's the case you're bringing and that presumably you know i think that's where your argument should lie that while we have a conduct test and a relationship test we can't be we can't ignore due process fairness and and whether a notice which is a fundamental requirement you know precludes discharge of a claim i am not sure what that means that you know you have a claim but we're going to preclude discharge on the basis notice that i think that's where you that's where your your argument really lies in the due process from your honor at least for a while for a while right this it's a constitutional in possibility that that there was adequate notice by publication under the unique circumstances of this case  are no leaks i don't have any interest that could possibly be implicated in this bankruptcy and then they move on to the next you're right and that's in effect the basis for why friend but when is it did but it the find claim or interpreted claim much more narrowly than any other circuit i mean it's i'm not sure i can think of too many cases in the bankruptcy area from the circuit that have been criticized more than and it was just wrong i mean unfortunately in but it was trying to do the right thing might i be your best argument really is the the one that affects your clients as to this case and that relates this judgment also to due process good morning ma'am please the court karen mccall on behalf of owens corning you sort of know where we're coming from correct with district court consider due process as she did she looked at two things whether this was a known or unknown creditor there was no dispute that they were unknown creditors she then looked at camp drawn and said under camp tron unknown creditors are entitled to publication notice she thoroughly looked at the notices as the bankruptcy court did as well and determine that they were fair inadequate provide reasonable notice the put yourself in the position that your opposing counsel hypothetically gave you're sitting at home don't see any leaks at the time you call your attorney and say well do i have to worry about this answer no not in the third circuit because they have this very different definition or interpretation of what is a claim and if something happens the next three years you get a leak you can you can make a claim because it's basically the cruel test ok that's the way this was that was the definition of claim in zero six plan was confirmed and then you're going to say afterwards well guess what that really grossman's there was no discharge there well it went down to it was remanded and then the case that old so there was never about that i mean that if everything is true i would be hard to follow grossman's and not say that this claim should not in all fairness well i think the difficulty with the factors in that last paragraph of grossman's are that they're all creditors pacific and they're subjective to each creditor such that if that became the rule a debtor would never have any certainty whatsoever that the publication notice and the efforts that he took to make sure that they were doing their best but efforts that were approved by a bankruptcy court he would never have any certainty that that would hold but still then you can flip it the other way they did you did have certainty in this you uncertainty at this point but from your perspective you got a windfall after the fact moreover i don't think we got a wind farm and we had a reorganization plan and a confirmation order that said all claims are being discharged that they that the claims as of that time were only those that  shouldn't post petition but i read to you are holding talks only about preposition and that's the west claim but it doesn't deal with the right client correct but in terms of the language of discharge in both the code and in the plan that says that claims that are existed at the time of confirmation are discharged and that was that was the analysis that i think just going to get was well racked but even though i mean that you know grossman's the factual scenario there everything was preposition but i think what judge conti was saying with that there was no reason to think the rule should be different when it's post petition because the key language is the claims that exist at the time of confirmation so what's the argument that we need for certainty what that what the rules were in zero six and is it fair to say to these two people or whomever else there might be were also might be  that guess what it's you know it's a game of it's a shell game three card money sorry well i i think that the they complain a lot in their brief about the fact that if we had filed if we had known if we receive perfect notice and we know and we had filed a claim it would have been rejected and their problem is that why should it now be discharged because it doesn't seem fair but the issue is that claims are with the law is going to be in two thousand and fifteen in a particular area when i hear what you're saying but i think we're focusing on the these creditors particular knowledge and what they knew and i think that does a disservice to the debtor and the public has a new at it but i mean what you knew you know six in terms of what the law was and what the a trick you're right and what the law was in this circuit with respect to the interpretation of the claim but i think the but where allowed to bring this argument today based on the law as it is today i don't and i don't think where you can apply that is if a day to something going forward no doubt about it you can apply this today the something any time after june of two thousand and ten but you've got that  twilight zone whatever you want to call it that that gray area that exists before and this just seems to be a case of i mean of just fairness i mean now the argument you might make is that the consequences of this are going to cause a whole heck of a lot of uncertainty for folks in the response that i say would be ok for some cases for some period of time not a whole lot you know the fact that friend vote allowed the cruel test didn't stop cases from filing in this circuit so you can say that it will dissuade cases from being filed but anyway going forward you're the circuits in line with everybody else you're fine everything after june tenth but before that time if you have a plan confirmed with a everybody understanding what the definition of claim is i think you have to ride with that understanding because no one could've were told what the third circuit was going to do at some point in the future but what do we do about kemp and the time of the of confirmation you had certainty that these claims were not discharged that's not true we did not have that certainty because if someone knew about their claim it was discharged oh of course but you had certainty that later defects were not going to be they were not going to be resolved and you were going to be liable for them you're going to be liable for this this roof because it hadn't accrued now you're getting kind of a bonus that you know if we were to apply it retroactively not retroactively but if we were saying that it it's destructible you're you're getting a bonus and a windfall that you didn't anticipate so from a  standpoint you know you're not you're not prejudiced by this at all and the other and the answer to your come from thing is a point which which is a fair point is that this court and bank well i wheedled that paragraph and in grossman's to be particularly concerned because this was in its best this case and they hadn't gone through the five twenty four g thrust and channeling injunction the language specifically says in considering whether innes festus claim should be discharged we look at this so i read that as we're not saying this is the rule for everybody going forward we're saying in this particular case when it goes back to her and i look at the language that does not necessarily mean that the van brunt's claims were discharged by the man application of the test to be applied cannot be divorced from fundamental principles of due process i completely agree i completely agree that the process is an inquiry i'm just saying i don't agree that that last paragraph in which the gro knew and then we go back and say oh yeah or what i so i'm not sure but here it would seem to me there are clear there are due process implications just like the close by noting that beginning of the grossman's decision stated and recognized that the court was competing on a bank under the very unusual circumstances for the court is overruling longstanding process the adequacy of notice cannot be divorced from the context of the case i believe this court has recognized the due process the very unique due process