have league case number seventeen days three five seven seven amber gastro first vs zero amber guess show at all vs global fitness holdings and all argument not to exceed fifteen minutes to be shared by the appellants and fifteen minutes my clients were held in contempt your honour's for conduct that occurred before an order even issued in for failing to take steps that the order did not require the plaintiffs have handed in a fight a single case from any jurisdiction to worry party much less a nonparty was held in contempt under such circumstances in the reason for this stems from the basic limitation of the kind of country on the that there's two different things that seem important here one is the preorder conduct so we're going to talk about that but the other is party nonparty and i you know i was probably pretty inclined to think it was weird to be posting contempt on non parties but this carries electric case seems to be very supportive of the other side in the district court  is that kind of dispose of the nonparty point it's not your honor and i don't want to deflect the question i should have said i'm going to address the the issue of the clarity of the order and the preorder conduct issue and mr ho take the other issues including the non part of k all right so you that means we're going to talk about preorder stuff go for it we are and i actually want to start with the clarity of the order because your honor we've the order in question refers back to someone agreement says the fees must be paid in accordance with the butt terms of the settlement agreement so we need to look at that in this agreement on the front page in bold find a capital letter says it's conditional and you're not going to see a discussion there brief of the condition you not have to prepare for the contingency to come to pass in some form and why can't the district court consider that now your honor because that's the whole reason that there is a conditional nature of the agreement but what about the district court's concern that you would then just drain the assets as judge targets thinks you did and it's reasonable in looking at the conduct to come to that conclusion i recognize some which preorder someone's post order but he looked at the totality of the circumstances and said look they drain the company to avoid paying this obligation that they knew was going to come to pass and i recognize the judge quite a send the supreme court asking but ultimately they thought he thought pretty reasonably that this would come to pass your honor but the issue is the agreement we signed up for said it's not enforceable and toll all the conditions are satisfied so at that point in time the obligation does not openly spring into existence and told those conditions are satisfied which is part of the problem and the question implicates both the preorder conduct issue as well and maybe i'll just go there but part of the issue there your honor is the distributional question what what is the answer to this point this really goes to both both of you could  contempt motion have been brought in two thousand and fifteen no it's after the settlement agreement it's after the order there's an appeal they learn about conduct that suggests they're not going to be able to satisfy the obligation if you're going to say they couldn't do it during a content motion two thousand and fifteen what could they have done well they could have asked for a modified their case that says they can the broad contempt motion two thousand and fifteen and i think you're right and they have why couldn't they are brought in fifteen well  kind of brought in fifteen because the obligation part of the issue is the order does not set aside any requirement it does not impose any requirements associated fines which is what they are saying isn't that i am in there some implicit i suppose obligations but that go to good faith that faith in that but regardless of you know reading just the literal words but the problem is if it's implicit then it's not explicit right has to be expos has to be a basis for contempt and i think contend under that circumstance that they had some duty to set aside funds and the answer of that was no but what that shows is whether or not you're held in does not depend on what the order says i ask you a different question which is when the supreme court issued their final decision denying cert the order do you concede that the order at that point in time became definite and specific after the time for ex expired for a hearing yes so you would concede tha did and that the plaintiffs could show that rightfully so then it shifts to you to show inability basically and what i want to go to the third step of that very quickly which is the clean hands what can the district court consider in the clean hands analysis at that point where you aren't then you look at what steps were taken post finalization of the order but here we don't really have that record because the second that it became finally ran  that's my question i guess is in looking and making a determination of clean hands can the district work consider the totality of the circumstances in other words i understand there's not a lot post order your honor i think the court could consider you know the background context but in terms of preorder conduct he cannot go back prior to the order and hold us liable for conduct or do you mean pre april twentieth two thousand and seventeen conduct which do you mean when you say i mean i mean both your honor i mean there's two issues right so the unclean hands only applies after april twentieth what you're on is not definite specific until then that's your point that's that's my point is i def and specifically until then now the point for that proposition that because it's not definite and specific until then the district court can only consider the clean hands of the party post the definition specific i think what you can if the court wants to look at like what y pattern and practice was i think you can do that but you can't sanction a party before the order becomes clear and definitive and that's part of the issue i asked you before and i can understand why you would want to talk about it but what could the other side  done in two thousand and fifteen if they'd gotten word that assets were being dissipated and there wasn't going to be two point three s thank you just so that if they had gotten notice of that what they would have had to have done is come to court and said look we have a concern we need to modify the order to place a restriction on their ability to spend funds because the settlement of one possibility is to change the settlement so it has an escrow for the fees right what about breach of contract at that point faith compliance with x but but the problem is you are in terms of breach of contract because the contract is not effective at that point they could not have come in and so breach if they were concerned about the expenditure of funds and they wanted to modify that or have the court play summer strict in on us they would have had to change the terms of the agreement they have brought a fraud and transfer claim down fifteen if they were gone or if they were just there were evidence of fraud and if there were evidence of fraudulent transfer they could have tried that you are point on the reply brief they did spend time trying to find a fraudulent transfer claim but they never have brought it and i was sleep i want to be clear a party in these circumstances may have other remedies its disposal party in the plaintiff's position but the remedy that they don't have here is contempt in the reason is because of the preorder conduct and because of the conditional nature of the settlement agreement just one last thing since you're supposedly the one that supposedly the person is going to talk about this let's just say for the sake of argument you're right about this preorder thing but we don't buy the preorder being able to twenty two thousand and seventeen we think it's when  m was initially approved by the district court so for whatever reason roughly two thousand and fourteen so we think you're right hypothetically about the ten million payment and that was obviously a big feature of judge you're wrong about it not starting the duty not starting until seventeen would it be appropriate to send it back to find out what happened between the final entry of the order and the present in terms of whether you can be or i think that's one possibility i guess what i would say is that conduct was looked at pretty extensively below they had an expert come in and scrutinize it all right but if he mistakenly believed the ten million right because the ten millions the kind of a bait and switch on him i mean he thought this is easy if i'm right about this and i have to worry about much of about the others but there's a lot of other you know there's salaries there's rand there's the three hundred thousand their expert never opined that any of these expenses were excessive in other words he did not say you paid this guy way too much or you paid excessive market rate way but the this is a different point which is judge targus was looking at it through one prism right he was looking at it with the backdrop of the ten million if you're right about the preorder and we take away the ten million he might have a deeper dive into the rest because that's what a district court does if they find something that says bull this is it this is the elephant i don't need to go any further they're not going to spend a lot of time on the other stuff i understand and i agree that's a possibility i guess what i would say is based on his findings in the order your basic point is they had the shot to do please the court and there's a party nonparty guy i'm sorry you're the party non party guy i can ask questions about party versus nonparty certain ok so what do i do about this case by judge opinion by judge moore gary selectric because i mean i  actually look at this case and scott gee they weren't even a party to this it seems odd but then i read this decision and i thought it seems like it applied contempt is allowed civil contempt against officers when the order goes against the company force they work and i'm misreading it in that case certainly there was excuse me a controlling dated a person who engaged in willful conduct in violation of a court order now i think to answer your first question is what should you do with it my response is you should disregard it as irrelevant because gary's electric was a a risk statutory case ok but in that with with any corporation it is going to do it business and execute the business of the corporation through the office of directors of that company and here if the judge said basically these people had notice and so why is that in inappropriate  to impose liability on them even though they were not and they were not a party because we don't have an injunction directed to the company it goes back to the issue of whether we have an order that exists here that can intent so if a company is ordered in this process let's just say it's definite source is except all that but it's specific and definite and you had to ask grow the money so let's take the plaintiff's money which you did ask row yes but let's say you didn't do that and the officers took the money you're saying the court could not hold the officers in contempt if the company's now bankrupt if it was a monetary judgment which is all we're dealing with here assuming that it was definite and specific that's correct there may be some other relief available but it's not contempt of court because this goes back to my fundamental point just to make sure i'm getting the hypothetical hypothetical is the agreement said set aside the money for the class members and they didn't set it aside you can hold the officers in contempt for that the settlement agreement says that yeah that's what i thought his question was he was focused not on the fees but on the right the cost payment and it said in the agreement set us put in  whatever was one point five million they don't put in an escrow they use it for other purposes we would call a frog they just use it for other purposes but they don't comply with the agreement can't you doesn't carry selectric say you could hold the officer in contempt if i suppose and i apologize i guess i misunderstood the hypothetical bit but i suppose where you're compelling some affirmative act like that is opposing the agreement set aside one point five they don't they spend it's gone well i would submit that in this assuming we have the type of order that we have here that it's still insufficient to support a contempt finding even against the officers seven circuit authority in the h k porter case for example where the court did something similar which was i adopt an approved the settlement agreement the terms and conditions are the targets points out the seven circuits even in part disregard that and said that it's that we should construe that opinion narrowly it did that in an injunction context where there was a clear injunction compelling some affirmative action not merely conditioning what was happening based on the terms and condition but back to my question the same nasty your answer is no the district court cannot hold them in contempt even if they violate a definite and specific order a definite and specific order that says monetary judgment does not give rise to contempt as an enforcement mechanism and that's that's effectively assuming that the order itself putting aside the seventh circuit argument that it's not clear and specific they're forcing an order to pay money or they're trying to enforce an order to pay money you've essentially by making my clients personal guarantors when they never agreed to do it now that law has been settled we've cited many cases to that yeah but what i have gary selectric i read it tell me what a receipt does that makes officers liable bear but not here there are certain exceptions to the monetary damage rule which says you have to use execution to to recover one of them is a federal statute provides the cause of action as a recess say you can go after officers for violations of what's says does not but it provides the statutory remedy which is the exception to the general rule that a monetary or there's a right of action against officers when you don't you don't get your pension your pensions gone arista says you can sue the officers at the point you're making no my point is that gary's electric is irrelevant because it's not the type of monetary award that we're dealing with here which can give rise to contempt in the first place i concede that where the order might give rise to a contempt finding like they did in gary's that a controlling officer who willfully causes the company to violate the order could be held in contempt it's this the rule sixty five standard that someone who aids or participates who with knowledge aids or participates in the violation my point is this is not a rule sixty five water this is at best a monetary award that you're just so i'm getting this point which seems slightly different is surreal sixty five does have some rules sixty five d about this and those rules were invoked here and you say if you don't invoke them you can't you can't do this that's your point my point is this is not akin to an injunction this is at best akin to a monitor i mean if we take everything the same as this but the end of his order judge sarkis says and consistent with several sixty five d two or whatever the one is about officers this applies to the officers that would have changed everything i don't think it's the magic language you know if it was a proper injunctive order and that's what it obligation to set aside the funding was incorporated in the body of the settlement agreement and the court just basically reference or adopted that that we can't enforce it but if that language that specific language had been set forth in a separate order then then you think that contempt could have been had because it would have been in the nature of a mandatory injunction is i don't know but that would seem to be a putting form of a substance no i don't think that's what i'm saying and it's ok if i yeah i don't think this that could happen in this case because the contract is how it's expressed it just couldn't happen contracts of nature of the case wrecked the contract itself sets forth a contest conditional contingent obligation that had not occurred when the order was issued so even if it the order incorporated it would be reduced if we were attacked that and no no contingency definite specific then then we go to my second point which is it's a monetary award that's not enforceable via contempt and for that reason carries electric as an exception to the rule does not apply as what that allows their nose at the contract that they entered into and the and basically thumbed their nose at an obligation imposed by the court and that's certainly not what we want i don't think it does your honor i think it just reinforces the rule that's been six circuit cases post gary's electorate that stand for your proposition that it's limited to arrests and the like not that i've seen but it isn't if you look at the cases they're cited in garry's electric it's federal statutory cases so it fits squarely within the exception and we've actually cited not just mark carrion but some other court decisions that have recognized those same types of exceptions so if the if just i'm trying to figure out the stakes of breach of contract let's say there's not evidence of fraud so this breach of contract and civil contempt i take it the stakes are you would agree given that the district court retain jurisdiction over this under could come in and they could have brought a breach of contract claim for failing against the company global fitness for failing to pay the two point three right  i mean you have to get the merits of it but that would be procedurally ok you agree with that but the stakes are that that would not give them access individually to the officers money so that's what that's why we're doing this because that reach a contract doesn't let you do that unless you pierce the corporate veil of fraud and transfer but civil contempt allows you to avoid that if it's exactly right your honor civil my point is civil contempt is not a way to make guarantors of the officers and directors writing it please the court and council before getting into my prepared remarks i want to go and specifically addressed a number address a number of the questions that the panel raised at the very beginning and that deals with the ten million dollars it's very clear from the chief  sarkozy's order the contempt is the failure to comply with the final approval order when is the final approval order one of which one is the final approval order was entered in two thousand and fourteen though if we find that's not point was definite specific that's when you would say it shifts to them to explain why they couldn't pay but that that's exactly how judge targets looked at it it's not how he looked at it but under the analysis of civil contempt then you go to april when when it was a a non order the supreme court had denied cert then the defense that's being raised here is in possibility wait so you don't lose that in answer to my question is i think we lose under two thousand and fourteen under the two thousand and fourteen alice at all louise don't correct because then in two thousand and seventeen it became definite specific and you would say they've got to show why they couldn't pay and unclean hands are relevant and unclean hands goes pretty far back exactly in order to prove i wrote in order to prove a possibility you have to prove that you took all reasonable steps to comply you have to prove that you're not responsible for the inability to pay and you have to prove clean hands and judge sargon spent a fair amount of time in his decision analyzing those three factors first over two days of testimony the managers admitted they took no steps to comply with the attorneys fees portion of the final approval order so the fact that they took all reasonable steps took a paragraph or joint mortgage i guess the question is when do they have to take the steps in other words do they have to take the steps let's just assume that it's twenty seventeen order do they have to take the steps after the contingency comes to pass or do they have to take it before they have to take it before but let me ask you about this  why couldn't you have a contract for wages right i'm going to pay when the wages come yes you can't sue someone for getting rid of their money before the widgets come contract for wages is not a final approval order pursuant to a class action settlement but this order as to the attorney's fees was not final and approved until the supreme court passed on but this the final approval order was entered in two thousand and fourteen and it was entered pursu three which required both parties to make affirmative obligations to the court the court had to undergo a rule twenty three analysis that had to do a rigorous analysis to certify the class it had to have a hearing and make findings of fact in conclusions of was but why is that final i mean it's not final and the contingency hasn't come to pass per the settlement agreement itself but i'm sorry go ahead but appellants have an obligation to take steps to make sure that they can comply because they have brought this order to the court that's a way to do it with your contracts the same thing i made representations that when you sent me the widgets i will comply i will pay you've not made those representations to the court and asked the court to impose that obligation upon you so you can benefit from the release and the dismissal of claims that comes within the final approval order yeah but i mean for him to talk about behave i mean you guys could have just as he says put an escrow requirement for the fees i mean i don't know i find myself we had a final approval order that instructed them that they should have had a very active you had objectors with rule twenty three contemplates and it's hard to say it they weren't serious they got a vote at this court from one of our colleagues that there was a problem with th the very issue the city's the rule of the case instructs that this a settlement agreement was reviewed by the district court both the magistrate judge and the district court judge viewed by this court and reviewed by the supreme court it was approved but the law requires that they take also have what's your answer to the question i asked of your friend could you have brought a contempt motion in two thousand and fifteen had you learn about the dissipation of the ten million we'll call it dissipates of notice of argument no because the contempt occurred when they failed to pay pursuant to the final approval order that was the young sort of brought you could have brought a breach of contract claim at that point could you brought if you thought if there were fraud you could have brought a project transfer claim at that absolutely both you could have brought breach of contract that had we known we would we could have brought a project transfer we have one in fifteen had we known yes and i want to take a second to address that because opposing counsel raises numerous times that that we briefed fraudulent transfer and were never able to how was it a breach of contract in two thousand and fifteen as to the ten million because the ten million was before the contract was signed the ten million was after the contract w will enter it's entered i mean it doesn't count until the entered correct but the contract between the contract between the parties was signed in the fall of two thousand the transfer was made in the spring of two thousand and fourteen so it would have given rise a breach of contract additionally i what where does it say that they have to because i look at the settlement agreement and i see that they have put the one point six million aside where does it say they have to take any other steps that says that they must use their best efforts to ensure that want to do it well why is it can tell you we're going to start with the ten million very it's important to note that when we learned on april eighteenth that they were not going to comply with the final approval order we immediately filed a motion to enforce the settlement agreement before  the district court judge very quickly into the discovery we learned that they had made material misrepresentations to the court and that they had fraudulent the transfer of the assets ensuring that they were not going to be able to comply with a court order or did not make any findings of fraud it did not but the appellant's in the very beginning in their defense they argued that they were that we were nothing more than a secured credit or so that issue was specifically briefed before the district court and we set forth a motion all of the badges of fraud that existed within the conduct that we what are you trying to do with this this is not the promise of the district it's not the problem but i'm trying to explain that a fraudulent transfer did occur  and the district court moved moved forward with the finding of the civil contempt civil contempt law if you've got a fraudulent transfer we are not changing i did i would disagree with the promise of the question that we're not changing so why do you need us to do anything if you've got a fraudulent transfer why not just sue them for breach of contract which you're going to win because fraudulent transfer there because contempt is the disobedience of a court order and the evidence here clearly establishes that the appellant willfully and deliberately disobeyed a court order and i mean when i don't remember you citing a case for pre court order conduct i mean that's the part that seems like we're being asked to move the law here there are numerous cases then our brief which discuss when a court looks to clean hands looks to whether or not they took a question was is there a case because i didn't see a case in your brief for the proposition that a court can consider pre order conduct i believe there are briefs or there are cases which is why our brief which discuss that you can look back in time to determine if they at some point in time have the ability to pay the right remedy remedy other words so let me just a have i guess i should just qualified a little more by saying it's difficult if that's true it's difficult to say in my purse from my perspective to say it was harmless because it was a big part of the judge says view of the case so hypothetically it's a problem it's not harmless what's the right thing to do the importance of judge charges his order is it's not just the ten million dollars  ten million dollars is obviously a big chunk of it but there is no efforts made by the appellants to comply with the final approval order in and at that point so are you saying just in answer to judge sutton's question are you saying we can affirm the last because there are sufficient grounds or are you saying we should let judge starr just take a first bite and really look at this and set that aside and see if that was sufficient i'm saying that you can affirm nonetheless because there is undisputed testimony on the record that the no action to ensure compliance with the court order there are district court cases which talk about managers in order to complete in order to veil themselves of the impossibility defense they have to give instruction to their employees to ensure compliance they have to do something to show an effort to comply not just an effort to comply they have to show that they took all reasonable steps to imply possibility in korea is different with ten million and without ten million i would i would differ between those two in this case when you look at what they have and didn't have i would disagree with that because there are numerous cases cited in our brief in which courts have denied the impossibilities defense when the they made doors your point is if you make no effort to carers that's enough by yourself i don't mean is my point that but there are cases cited in our brief and there are numerous decisions around the country in which people are held in civil contempt when they failed to liquidate assets when they failed to take out loans when they failed to do things to obtain the and obtain the money in order to pay the obligation that was required so there are there is a wealth of authority which would support a finding that even if you disregard the ten million the appellants are still in liable for civil contempt are still engaged in civil contempt how would this case look if there's not the ten million there's no s q requirement it's only the the class members money that set aside so there's nothing about asked during the one point five for fees and then what happens is you know it's a it's a business that shut shutting down so they don't have revenue coming in and every single expense is a legitimate expense which is not a single religion expense and so when the content motions brought the officers just say we just paid them as they became due i mean we had to we had it we had a duty they would have sued us if we didn't so we paid them as they became due and then by the time the appeals done there's not one point five would would there still be civil contempt as to the officers yes and gary specifically to that gary's electric holds the individual in contempt because he paid all other creditors and made no effort to about the arguments of money as the case so it sets it aside because of the statutory paul the holding in there is electric has an absolutely nothing to reason i ask my question i mean it it does have a very selector component to it but the reason i ask my question is your position seems to read into every one of these agreements a duty to escrow that's why i asked the question because i don't understand and that just seems very strange to me because the parties did it in one setting they didn't do it in the other in your answer to my question about the situation where they just fairly honestly pay our expenses they come due the one point five happens to come last it's not to after people twenty and i don't understand how that's not a rule that implies an escrow in every one of these and that's that puzzles me but i think that i think an important distinction is in this case ric and that to me is another way of saying every one of these agreements has an implied escrow otherwise civil contempt and sanctions and personal liability i guess i would disagree with that proposition because that is the entire purpose of the in possibility analysis that's why a district court undertakes a review to find out what's your answer might be it was impossible i thought you were going to say to my hypothetical it was impossible to pay in the officers are not liable if because they paid things as they ca due fairly in the one point five came due last bad luck if the and i thought that would be the answer but if if the court undertook the analysis and upon review of all the facts and all the testimony can i just gave you the facts i think it came to the conclusion that it truly was impossible for them to comply then that would be the appropriate result in your hypothetical possibility is due to paying earlier bills because they came do earlier if that was the ultimate conclusion then that would be the appropriate result and gary's elect doesn't disagree with that gary's electric points out that you paid all other creditors with complete disregard for the creditor the brought the motion for civil contempt very careful analysis of almost every argument made by the appellants shows that it's a complete contradiction of a prior position that they've taken in this case the facts are in the undisputed record before the district court is that they had fourteen million dollars that they spent between two thousand and fourteen and today almost all of that fourteen million was spent exclusively on the managers they were insider transactions and they made no effort to comply with the final approval order thank you all right thank you very much so we have a new person taking the stage all right mr owens please record david on your i represent global fitness holdings and on a couple of things i'd just like to ask you one question before you get to it which is all along with strikes i think judge sharpness is wrong and i think the plaintiff made a good point of all along you're sitting side by side with the plaintiff's attorney representing to court that this settlement was fair and just and at the same time you're basically knowing you can't comply with it ultimately and i mean that would strike any court is problematic because you're i mean implicitly making a misrepresentation to the court let me break it down your honor first of all we're not making any misrepresentations to the court we signed a settlement agreement that said we would not oppose the attorney's fees and we never did we never supported or oppose the attorneys fees we were silent on that we did support the settlement agreement we thought the settlement agreement was fair when we signed we thought the settlement agreement was fair when it was entered we think the settlement agreement is fair today that is a completely different issue than the ability of a company that sold its operating assets in two thousand and twelve and then waited as a series of events took place that the plaintiffs are right that the managers they testified they they didn't even know what was going on in the appeal and they were taken no steps not to comply at any point in time so in other words the lawyers are out there making these representations while the managers are over here not paying any attention maybe that's common in corporations but they're not paying any attention to what's going on the legal  i don't know that's a fair characterization that they're not paying any attention they didn't take any action they didn't take any action pro or con i thought one of them even testified that they didn't even know what was going on right there when their owners of the company that you have a an individual kobita very he testified he was operating the company who is managing who is telling me your fees are to have reduce your fees whose questioning dall on their fees we're calling tom mccormack and saying why are we paying dol to do all this stuff while this upon appeal he's made getting bills and the judge sutton's question you're getting bills and you have the bills due it's not a bill that may become due it's not the bill that you think could be due it's a build it it's your attorney who's handling the paramount case and attorneys a case that they like to point out there's a four and a half million dollars but at some point you knew you weren't going to be able to pay the fees and no one said anything until the bill came due i mean that was i would take your say order you know i'm sorry your honor comes to whatever a belief was that two days before  twentieth is that when we didn't have the cash then we still had an appeal right in the paramount case which is since a lapse we still have an insurance policy that may or may not be available we did not have the cash but the statement in the brief that we didn't have the assets is not correct you just said something i was unaware of you're saying you have an insurance policy that my cover that there is two insurance policies one there's a small policy that was paying some of the fees in the case that they have declined to pay anything more there was a director and officers policy that was uncovered that was denied back when the first claim was made that was uncovered actually through the discovery that's still being one of the words litigated but it is not being litigated your honor but the reason is that the companies in joint we don't have any employees judge service would let us pay the employees they left it's amazing they would understand want to get this insurance thing are you telling me there is a potential i would judge charges his cooperation there's a possibility of getting coverage for this there is a possibility it was a previously denied claim that client denied claim based upon it's under contract the allegations that were alleged were more than contract there's a little bit i'm like just a policy board as we cover this and it would cover the fees it was over three million dollars so about three million dollar policy covered the two point four million plus what it would and the company has in my desk today i have the proceeds from the paramount case which is two hundred thirty three two hundred thirty four three two hundred know about this insurance he was he knows that there was insurance he doesn't  specifically about the amounts or the the part that the focus of this case is remember when we notified him we didn't have the cash the purpose was to work with them to sit and the company is committed to trying to pay the attorneys the fact that we don't have cash and we didn't use there was an exhibit one that was introduced the code we do very went through that shows how the decline went a lot of this went to attorneys fees they were reducing employees they were reducing cost that's what happens when you don't have operating income and you have a case that goes up to the court of appeals in the supreme court for about two years and you have a paramount case we tried the case in fifteen your honor and also you talked about how you never objected or opposed the attorneys fees and all of that and how you just didn't have the cash to pay this but it having been a party to the settlement as the position of the company was changing did you make any steps to bring this to the court and ask for you know relief within the settlement of because we've asked the other side they didn't do anything but did you have the a permit obligation to pay and knew what the company's financial position was did you take it he steps to notify the court of anything relative to the obligations in the settlement agreement the company did not your honor but remember that this is it's easy to look back now and see what has evolved over the last three years what was happening is in the paramount case we had a case that was pending in two thousand and fifteen late in two thousand and fifteen late august the judge rules on our summer rules on summary judgment pairs down the case we go to trial in october we prevail we make a petition for attorneys fees of over a million one where the prevailing party the judge decides there's no prevailing party he denies that that appeal timelapse last week we notified the other side we've got this case we notified the judge we have this case we need to direct your honor we don't have employees we can't spend any money we like to help so we're tried later but then we call them up and say we may not have enough money no your honor because we didn't know this is a bottle and i know you know you're new and i know you were thinking of a lot of things you wanted to say but i think to be fair to the other side probably i'll leave it at that so it's fine you're in but i thank you for having tried to slash and thank you to all of you for answering our questions really appreciate it thank you for your helpful briefs interesting case we're going to work through it and get you some soon as we can thank you very much we appreciate it the quick major in court