the injury that's actually been addressed that where they're seeking redress there is no allegation that the burning party is where the opponents directed the debtor to not take and ultimately the complaint is about because you did something i should have been paid those are all derivative claims in this case the damage model that the injury that we're talking about has to be something completely different and in the case that go the other way that the debtor wasn't insolvent or had it's at least a sufficient liquidity to have paid the claim if they only had three million dollars left in the bank they used all those things million dollars to pay to support his claim there would be no breach of contract he would have no complaint he would have received exactly what he was entitled to but if there had been tortious interference of a third party all the other facts remain the same some third party comes in is trying to take away the assets of the company trying to take over control of the board and as a no different than anybody else i'll begin with educators group health trust is the first in this line of cases this one is very helpful because it splits the difference there are one set of allegations and one set of cause of action that  outside of the bankruptcy or is it the debtors claim against the same defendant but what you really seem to be saying is it's it is the plaintiff's claim that it should have been brought in the bankruptcy because it's a claim against the debtor as you said so is that really the i mean isn't that a different issue than all these other cases address ye saying under torture is interference there when you know whether it's a good one or not we're not getting into but it's the same injury he would have been pursuing in bankruptcy as a creditor just against a different party because ultimately in and dexterity you'll see that something looking at the label of the cause of action isn't really enough what all the analysis is about is going away or sort of more general and saying what is the actual nature of there is an allegation in the case that the defendants market made false representations to the school districts to get them to participate in those trucks about the financial decisions that so the debtor can never have brought a claim for that is allowed to bring a direct separate action is a different injury that's not dependent on an injury to the debtor and cheese me most examples that you have given us you've had a general lowering of the the company and what this point of his arguing is irrespective of whether it's a good thing or a bad thing to farm irrespective of whether the assets through the actions of replacement management increased or decreased decreased by this discharge i have an injury caused by the tortious action already am oh response isn't this a different injury not dependent on any injury to the debt or to the bankrupt and therefore is not subject to the rules you're talking about no i think it is you need to say no mature x you need to say no it's your analysis that concerns  displaced me interference has displaced me as the head of this particular company and continuing to run it and all the aspects of that i haven't we need to go back and complain to see what all his relief is what relief is you seeking in the but it's not you you need to make this the debtors injury and it seems to me to make it something is only subject to being found in bankruptcy and just another claim that wasn't paid but it but a meridian did not have the common all right to interfere with his contract if they did and created a tort thereby if they did interfere with it of which it is a no other way to view why this this particular claim is not in the category that you're talking about it's meridians actions jennifer had his contract and it was their liability they were dealing with and it's not dependent upon an injury to the bankrupt your argument putting any kind of failure to comply with contractual obligation as within the same general category of something needs to be brought in bankruptcy and he's looking for special factors he may not use the word factories but something to differentiate this claim as opposed to there there's a contract with dexterity that was breached by these me and i don't know how far they've gotten in the case where these  go to s p i went to these other malefactors again allegation and they were so why is that different here not the money didn't go necessarily elsewhere but there was a contractual relationship breach or not just that the court asked the following question what is the pleading underlying the plaintiff's claim for breach of contract tortious interference with conflict was it a specific allegation about harm directly to them or was it a shanda lies to allegation in the third paragraph down the court notes played a student not specify what particular breaches of fiduciary duty or wrongful acts for sympathy did the alleged contract breaches rather they incorporate their allegations as a burden supporting counts one through four in the second amid complaint counts here on her allegations that went to broad general damages suffered by the data are not specific unique on these breaches of fiduciary duties related to the alleged bogus distribution agreement plaintiff fail to demonstrate how these allegations also support their specific claim against defendants for tortious interference in our case all we've alleged reports it's the tortious interference fax we've not away edged that they ran the business down we've not alleged that they looted the business and took it took the assets and moved them over somewhere else even though that's what they did but that's not alleged in our case our allegations are specific and particular and that distinguishes us from the allegations in dexterity affect the rest of the creditors to have no effect they're not assets to which the creditors are entitled they were given the damages suffered by mr burke why is his damage mr burton's damage not for not getting whatever the payment is used for improper without without cause dismissal whatever that amount is you disagree with the characterization by your friend on the other side that that is all that he would be  disagree that there should be could be zero day if if for example someone were to find that he was fired without cause but there was no money there may have been other damages that he suffered in the interim what you mean by there was no money i'm not following didn't have to pay and so do you agree that if you were fired without cause as a contractual provision for that in your client's contract with the debtor and that that would have been a set fixed amount to be paid that would have been one hel grist for the state court district judge this case there's a special exception and they want a special exemption that details it that's where it belongs this case falls in that category of  court's power and which cases are a novelty this case is clearly within the power of the state district court that's where it belongs all of defend its arguments are horace for the litigation move and state district here is who owns the cause of action that's a simple issue is that what seems different about this case than the others the other is the issue is can the debt or all the other creditors have the claim or this plaintive here  side pointed out it seems to me the argument isn't so much of the debtor did you try to argue that the debtor could have sued meridian for this but it's really that this is no different along the lines with judges groups that then a claim that should have been done in the bankruptcy against the debtor it's contract with an oilfield services operator they did also have a claim against meridian all outside of bankruptcy i mean opening again set all this out but you should be making the point that unlike here where you're saying that there are certain actors who work to get certain individuals to cause this decision making to occur and causing your client to be fired and replaced by other corporate officials there was not that kind of specific allegation in dexterity but had there been that too would have an alibi allowed to continue is that your view of what  my concern with this case it did it's it cuts both ways and i do think you're calling on the other side who's helping us understand this case as well from a different perspective is right that there's a certain garden variety and i don't want us to create in this you know from my personal view i don't create in this case that sort of not a get out of jail court i can't do it quickly enough to say what the opposite would be but every a large increase the number of people who have independent claims and of how you allege it and the complaint it seems to be there's an awful lot of imaginative lowering that elise to allow claims to be brought separately in state court or as a federal claim in federal court independent bankruptcy is still has to be proven and that maybe the biggest problem sort of corrected my concern but why do you i mean seven seas uses language along the lines of what you're talking about in just king actually wrote about the injury being separate on an injury that is not dependant upon injury to her to the bank or is is to how important is that here that that the nature of your injury you're talking about the when anybody else is contract who was breached by not fulfilling it and have a unique injuring only my own the only one injured by the failure to honor this supply contract on this employment contract if there is a or if there and that distinguishes it from the rank and file who lost their jobs because the company went bankrupt so it that is the absolute distinction and it's interesting seven  more there certainly has been case law and i think that just reading about financial matters of some white knight and maybe not completely clean coming in to try to save some corporation was in distress and making demands it seems to me this could be a very common kind of claim that this new whoever had the new money that was coming in corporation made demands and those demands will affect the obligations of the company in the mail two million up in bankruptcy regard us hope with all  go twenty years ago with this other school heigho to find a court ruling the other way the reason that court goes the other way is that again there is a direct representation in that case the defendant was alleged to have said to the plaintiffs you need to stay on as the president don't go take another job we're going to we're going to back this company really do the opposite of what really it was like to have done we're not going take away the assets we're going to going to stick by you and his allegation is that he was harmed by that so it's a lost opportunity cause that's why it's a direct claim just like in seven seas they could have sued the bondholders could have sold out of their position that was a lost opportunity cost that damage is different than saying i just didn't get paid my contract on the question of what does the complaint say it's in the record your eyes can read it but i did want to highlight you know if you look at the damages provision it's page four thirty six paragraph twenty seven says quote burton will show he has suffered substantial substantial actual damages specifically the loss of monies to which he isn't titled under section b of the agreement burton brings the suit to recover the monies he's entitled under section b of the agreement together with any a political prejudgment and post such an this correct and that's what happens it and that's what happened since dexterity the court in each of those cases looks past the label that's put on that complaint so what's really going on here if you look at dexterity judges here says this is just a sure do to ruffle action precipitated the alleged contract breach and that's not the situation here where that has been more special ed what is that loose language or is it to not what would you say about him called the last case of this day