so and we understand that we understand that the defendants and we also understand that although judge thompson served five the question for twelve monday to be appeal a pack a motion panel of our board denied that and that's under a different number and that's over i checked my circuit our  change that and decide the case is not appropriate for that is relevant and that's why i think the merits are relevant for the second prong of cohen versus beneficial the collateral order analysis is the importance of the issues and i think the importance of the issues is that there's actually just to truncate a little bit there's two parts of cohen that are important it doesn't say unreviewable it says effectively on reviewing it and that's what all the cases say it doesn't say that there should be a technical construction it says that there should be a practical construction and i think i can lay out for your honour's why in this case a practical a practical construction makes the courts in the remainder of the country and it never reaches the court of appeals because of the many statutes that prevent courts of appeals such as fourteen forty seven d from reviewing remain orders but there are many district courts in the remainder of the united states that have ruled that section twenty two a a is the more specific statute and that section twenty two a trumps bankruptcy removal and i'm like to come back to that later because i have they they were down on their game when they wrote that opinion that a and i that's one of the reasons like the judge yes and that's one of the reasons i wanted to wanted to address the it's and i thought oh he's more circuit suppose on the twenty two a question and i think equally important and the related to jurisdiction question because in the circuit with that the pay court case we've got the which i think your honor was on the which is to the same effect i was wondering whether grace really basically says there is there's a big distinction here and one is if the  based on some kind of product liability common law cause of action then you have too much intervening to be related to you but yet like the other cases there is contractual  will the stone bill to feen cases which i think are their post picture postcard cases judge responding are cases where you have a a payment obligation from a bankrupt corporation the payment obligation arises before the corporation declares bankruptcy after the corporation declares bankruptcy the bankruptcy courts order immediate order prevents the bankrupt corporation from paying the pre partition wages and so there is a direct conflict between the federal bankruptcy statute and state statutes such as the pennsylvania's w p c l wage payment and compensation wall which holds officers personally liable if the wages aren't paid because they can't pay the wages out of the corporation and i think both both belka feen and stow i think fall into that category and i don't think the rule in pay corps and case and i think we cited another one in our brief but it's certainly the i can see i can holds case in this circuit which was followed by the eleventh circuit in health south cited just last year and right but it's ineluctable we go to a circuit where this court if if we're right knows that the law the binding was going to be to the contrary of the law that new jersey argued and that we we believe that new jersey believes would prevail here more importantly after that case is over after it's pre tried first we might go to the second circuit if we go to the second circuit the second circuit is going to apply the law in world com at the end of the pretrial process under fourteen zero seven and milburgh versus lexicon that case will be sent back to the district of new jersey when it is sent back the district in new jersey under twelve h three this court if this court reviews it has a continuing obligation to review subject matter jurisdiction there is no law the case doctrine on subject matter jurisdiction i think  judge hartman shortly after you were elevated i think you wrote an opinion to that effect the council tree versus federal communications commission opinion shortly after you were elevated to this court that were the case doctrine doesn't govern so we're after years of litigation we're back in a court that we don't believe we have any of legation to be and we believe we have a right to be in state court if the district judge doesn't really examine jurisdiction and eventually appeal to this court after years of litigation years of expense and waste and it's not just expense and waste being dragged through the federal judicial system we finally get to this court cases where a criminal defense lawyer was this held this often so that the defendant had to go through the entire trial before the he couldn't get the court to determine whether he should have been this final fight or not and the supreme court said it's  because it's going to take a long time well for it's not just because it's going to take a long time your honor unlike the we have this mythological creature in federal law called this unitary body of federal law and it's  convenient creature even though it's usually mythological but we know that that creature is greatly wounded limping in this case because we know the law of the second circuit why it is widely divergent from the law in all the other circu awaiting a decision of this court well the diff the defendants are fond of pointing out the twenty five cases were sent to new york but this is the only one where the j p l they cait at the c t o because this appeal was pending before this litigation uniform standards act and that was the complete rewrite of the securities laws in one nine hundred ninety eight i agree it has a strict construction but they but they use the words affectively review and they use the words practical construction and how can there be effective review after a lengthy process where we're effectively operating new jersey has to deal with the sharply contrast in laws law from two different circuits here and there if i could have just one more moment where your honor if they if they go to come back to new jersey under lexicon as they will they literally have to try the entire case this is not a small case after operating under the second circuit's law before the district court in new jersey before they get it eventually appealed to this court and a declaration that decision from this circuit which is to the opposite effect and i would analogize to one other situation we're all familiar with the renowned its recent supreme court decision a nick ball that's a widely recognized exception where you've got a government official dragged into court and it's typically recognized that under the collateral order doctrine the government official has a right not to be in court and not to have to go through the you've got me at a disadvantage your honor because you thought this but let me let me at least just to get out my point we have a case here we're a state server and then i handed up some of the provisions in the ninety eight law where congress was extremely diligent in preserving the rights of states operatives to bring their own actions in state court and to be remanded back the command of twenty two way is not only reenacted in twenty two way it's in seventy you are mr green down oh you you have three people arguing it's a mistake but i'm on the side you have the right to do that but i will cut you off and you have four minutes miss mccarry has nine minutes and mr mclean has two minutes presumably rich will have something different to say but him mr may please the court jeffrey j greenbaum i'm going to limit myself to the issue of this court's jurisdiction first and foremost and frankly dispositive on this appeal as your honor correctly noted the divisions motion of the twelve ninety two b was denied and the sole basis asserted for this court's jurisdiction is twelve ninety one and the clatter order dr and the we review afterwards he's going to give to a multi district litigation case and they're going to be sweat and all of that and a lot of pressure for settlement and it well your honor the supreme court has weighed in on that subject as recently as three months ago in the mohawk versus cochran muckle hawk in the streets versus carpenter opinion and justice souter justice sotomayor made very clear that the exceptions to the anality under the collateral order doctor must be narrowly construed and she reiterated that classes of cases for the collateral water doctrine much remain narrow unselect in its membership and she found that there are other safety  ninety two b even mandamus that should come before the collateral or the doctor's use and in that case involve the attorney client privilege which in my opinion is a very important right but she found there were other ways to review it and i don't think i have to go any further context it was a man damus appeal but the court noted that no one even asserted that the collateral order doctrine would apply and the court noted nor could they reasonably do so and there the court rejected the very argument that's being made by the plaintiffs here that they could not affectively review this order on appeal and the court found that merely because there was going to litigation expense and the lay was not a sufficient grounds have come within the third requirement new jersey and new jersey people you know this isn't your honor they are no different than the fourteen other governmental entities that are already before judge kaplan who are those what kind of they are the state of washington isn't counties in california by the state entity in washington is almost in their dental situation there before the judge kaplan and i don't believe this is any sovereign interest that's being asserted here the related get and they're we've agreed it's an important question the question is already been addressed that the supreme court says it's unfortunate that you have to go all the way but you have to go all the way through the case to have it reviewed otherwise every you're going to assume that we have to  but in the event here we are here we are if the plaintiffs lose their case how does that affect the bankruptcy of state if they lose the case the then th fewer damages entered against the individuals have rights of reimbursement of defense costs and indemnification so their claims against the estate will be lower the as the state of new wouldn't it would need to be adjudicated by the bankruptcy court that's not something that gets adjudicated at this juncture in valka fine the court rejected the argument that because someone's bankruptcy clean is contingent that that would be sufficient grounds to deny related to jurisdiction and the fact of the matter is in addition to the state of new jersey is one hundred in ten million dollars claim there are hundreds of billions of dollars of claims that have been filed against these individual there is not enough insurance money to cover it the insurance money will not so it is inevitable that these individuals are going to have to turn to the estate the bankruptcy court already authorized the charge why would they turn of your state if they win this case very likely defense costs are going to eat up all the insurance so we're going to be looking to the bankruptcy state for payment of defense costs and then if there's any adverse judgment not just in this case but in the many other cases out there then they will be valid claims for indemnification but but aren't the defense costs static regardless of whether the case is litigation state quarter federal court well it's obviously less efficient to have forty four cases which is now before judge kaplan arising out of lehman and then a separate case going forward on a separate track in state court with a separate trial so that would be called is a deal but it's so right there would be higher defense costs if they're separate and then there's one fact prosser incurred by the estate of the debtor not by the insurance carrier the bankruptcy court has authorized there was a motion made in bankruptcy court which the state of new jersey weighed in and made a filing in bankruptcy court even though it says this case is not related to and the bankruptcy court said i am authorizing the proceeds of the insurance policies the policies belong to the estate the proceeds i'm authoriz therefore the bankruptcy court might not advance if it's just an ordinary that be paid like any other unsecured creditors yes that's correct your honor it can be advancing the money the my two points if i may to respond to that one is that the banks because it does have the authority to reject that contract but it doesn't have to second judge back in the southern district bank if you paid already has authorized the expenditure of defense of a state funds to cover the defense costs of individuals for whom there was no insurance or there were individuals who were sued for things like employment discrimination and that was not covered under dno policies there was a time limit for a rejecting contract so they either already accepted this one or reject right or is there no time limit i don't believe it's had to be pressed by the court yet there's a claim in bankruptcy litigation a contingent that's pending but because the insurance proceeds haven't been exhausted the court hasn't had to face the issue am i going to accept right exactly check the contract ok so i have their right and then so judge backs order which is found on the docket two five zero two of which this court we take you to shal notice said for these employees and former employees for whom there is no insurance i'm advancing i'm up granting the estates motion to advance millions of dollars to cover their defense costs so that they will be provided with a defense in this case so it seems entirely possible that if these the insurance policy here is exhausted and the go to court and seek to enforce their rights that the court will allow the estate to expend funds to provide what it's really was required to provide under the bylaws which of course is the same situation in the the bulk of fine and st cases those also were it is in bankruptcy for which the bankruptcy court could have when the time came say i'm sorry the bylaws or contract they're disallowed but the court didn't do that there that ultimate issue of dispute because of course the insurers are saying there's too policy years at issue here in the insurers are saying no no it's only one policy year but so it's either two hundred fifty million or five hundred now it's not my claim that the cost me that a lot of money the first layer of coverage twenty million dollars was exhausted by defense costs last november there are over forty law firms representing the various individuals not only in the civil litigations but also in the many criminal investigations in the civil investigations there are three investigations going on but two congressional investigations and a  costs of reason not whether they each i mean you say they each say they need individual counsel but is the back of secret looking you know the insurers the insurance companies have gone back and said why does this particular person need its counsel and they are reviewing the bills very carefully they don't provide car service home with someone we're still ten o'clock at night or they reject a meal or i get you know and we don't pay for lexus or believe me they go plaintiffs like to portray the second circuit's worldcom decision as some outlier and of course this court isn't going to just follow the second circuit because of the second circuit going to do it's own analysis but before that second circuit decision came down five district courts found that fourteen fifty two a should be take precedence and after world com came down no district court has gone that way other than a court that said i decided this before he and i haven't changed my mind so they have three district courts going is that repealing statutes by implication is this favored but particularly when it's jurisdictional statute so even if you have a more specific statute if what you're trying to repeal by implication is you should not do that the second is that and this is under this supreme court's decision in branson hour if applying a more specific statute would violate the general statutory scheme of the general statute then you should not find repeal by implication and congress does have a very broad statutory coherent steam prevailing with bankruptcy and the mighty seventy eight is any claim or cause of action in a civil case can be removed on bankruptcy to grant bankruptcy related to grounds with two exceptions it does create one for tax court claims and it creates another one when a state is bringing a suit in its capacity as a police power which isn't happening here and under the principle of express yo ennius when they say here's the law construction argument should apply and govern no matter if you could even if you could say that was a more specific statute that says that was your are your answer yes thank you thank you thank you and you reenacted in one nine hundred ninety eight and there's a new section seventy seven p t four which is on that hand up another one that congress underscored that states sovereigns in their political subdivisions are not to be removed to federal court when these claims but of are to be remanded and that's why i make the analogy your honor to a federal officer who has a judicial immunity this is a state sovereign that we contend has a judicial immunity under principles of comedy and specific congressional and that eight and sluice which was a complete rewrite of the securities law and says this is a specific exception that we're legislating for states and their pension plans and it's not like thirteen thirty four remember thirteen thirty four related to jurisdiction congress expressly says the bankruptcy courts have original but not exclusive jurisdiction those three words but not exclusive follow original and their its command after command fourteen forty seven d even in fourteen fifty two in thirteen thirty four itself and in the statutes that have put before your honor's that such cases should be  remained it i did have i have thirty seconds on counsel's argument on the merits of the related to point if i get by and i want to come back for a moment then to appellate jurisdiction first of all there's a letter we reproduce to pages indemnification for securities act violations in i could holds another case and health south and other cases there's it's clear there would have to be another lawsuit to enforce that right and that brings us within the rule of pay corps and grace versus you carrie i thought that was the case but then ms mcgarry said that these defendants are being paid their fees are being paid by the company well but is that undermine what you just stipulation in the bankruptcy court that those are not part of the estate and it was by consent including new jersey's consent that the d'you know cause he's really the pivot of these all right fair enough but that every time another hundred million gets drawn down from the insurance pool of money that has an effect on the state right because the soon as they exhaust the limits of that policy and then it's game on for the song it is  maybe for the bankrupt but we're suing officers we're not suing that bankrupt right sitting before the rules but related to jurisdiction is it related to the bankruptcy i mean well i guess what what i thought the import your twenty jay letter citing grace which made some sense was that look this is so contingent because there's going to be an intervening litigation that's going to be required by her posing counsel tell us that even if that might be the case there is still a current detriment that the bankruptcy estate is suffering by virtue of this action so therefore it's related to what we don't we completely disagree with that we sued officers and directors and the fact that we stipulated to allow these proceeds to be released in no way establishes any agreement to the proposition that this is related to your other can i just come back to the for for whatever time you want to give me and we're not asking your honour's to issue some sweeping pronouncement that the collateral order doctorate applies every time there's a refusal to remain and a case there are special circumstances here we've got congressional enactment several of them including most recently in hundred ninety eight they give state sovereignty absolute right not to be in federal court that means there is no jurisdiction we have respectfully and in judge who brought us as a good judge i think he got it wrong in that case because he had to rule both that there was related to jurisdiction and that there was a statutory conflict worldcom ignored sluice a judge wrist on a completely ignored it and if you look at the tennessee we cited both tennessee consolidated retirement systems opinions in our briefs the second one was by judge haynes after world com and he does a very good job of analyzing that he shows that salusa is the subsequent  shows that to the congress did pay attention to this both the statutes themselves and the legislative history so in the seventeen that's what i handed up yes you did that's an excerpt it's an excerpt from seventy honor there is some discussed didn't we didn't have room in our brief but it's discussed in judge paine's opinion the second opinion is intense that it does there is some there's a house conference report set forth in judge means opinion but i political subdivisions and state pension plans and private parties that retain their rights under these acts after sluice class actions private class actions are under state law or that we preempted so we're not asking for a sweeping opinion we're asking for is a narrowly targeted opinion that in the in the context of this case where you've got a state sovereign with no they has a right not to be in federal court they don't have the duty to be dragged goon through two different circuits with sharply contrast in the law if there wasn't stopping it well i couldn't say that they had sharply contrast it will i could say that they they have the right back and then we have to try it before we can get back up here again can i can i just add a couple things there is there is a a lot of case with already in the circuit for mandamus in aid of appellate jurisdiction think your honor i my mind because unfortunately because it's subject matter jurisdiction it's not clear that we have collateral estoppel against these defendants if we ultimately after all these years when a judgment against them in the district court in new jersey and it comes up here they would be free to suggest to your authors that there was never any subject matter jurisdiction despite the fact that they removed it and negate all the orders the collateral order or was a collateral order peel and there's also a and i think the other thing that is not in the brief candidly is your honor actually wrote an opinion instructional systems inc the computer curriculum and that's thirty five f thirty eight thirteen and eighty  seven so your honor instructional systems into the computer curriculum i'm thirty five f thirty eight thirteen at page eighteen note seven that's a different procedural mechanism we won i don't know why the panel and i survived to deny refused to accept it the second circuit accepted it judge barry's panel didn't i'm not sure i know why but they didn't and that's the end of that particular well not necessarily because if it were recertified on your other suggestion if that were the last word i think it would be that you do that