the right to a jury trial that should have been done trial but prejudgment to find that the alternative energy do not support a decision to transfer the ownership of the twenty million dollars back to the they come after all the other creditors in the second basic proposition i get from those cases is that when investors tries to do what i call an end around the courts have not allow and repeatedly somebody who's an investor tries to avoid the applications for by saying such things as well i'm really not making my security or the transaction really didn't close and of course have said no if it relates to your that assumes as an investor i would say that when you read the cases there are people there are cases there where the transaction is not finalized where somebody signed up for a side they didn't get there was a bankruptcy before that and the courts have said in that instance where we actually get the stock when it's actually closed it's still a i'll transfer you are exactly right i mean that this is a unique animal you're right you're right and that's what that's we're going to come to because when you go through all of this approach we've had a lot of different positions from the plaine properly language that comports to retain property rights since these words are not transferred in one looks and lean for any argument like that it could be argument language and then it says  say look we sent a long stock power and that changes things about well a couple things you look at the stock power and it doesn't talk in terms of reserving property rights and moreover the star power wasn't transferred startup company was going to succeed then by virtue of the manner in which they had orchestrated the tender i'll use that term of the star they still had control over it and they could pull it back what difference does that make here ted as eugene do they might have benefited because it was part of kevin's effort to get this airline going to get more money or if he didn't report exactly the status of the offering did that make any difference there's no showing that ma district court found it was material i know i know i know and i think you have to address that and say when you look at those tracks carefully do they in fact make a material difference tie g i c but i'll come back to this what your time is running  appeal from the district court finding that the contract the nine hundred ninety seven contract didn't contemplate that no money would be raised there is a rescission provision in the contract that the contract may be rescind and that's a funny use of the term research and because it doesn't really since the contract would have does this has three alternative apparently avoids the inter contra and saying they got all the stock back so what's your position on what the remedy is here assuming that there was or then according to the course theory this issue is not addressed let me touch on the second part first the judge found out that he decided that closing means consummation not the end of an operation and we all know the term close with a situation where if there are multiple closings you have to have multiple consummation if there are multiple confirmations in the be that none of them totals fifteen million dollars but if the clock think that the district court was contemplating doesn't it mean simply b and the raising of funds pursuant to the private placement offer that's what we think one closing that's what we think put it in your client for your your successor to the client covenant of good faith and fair dealing in the manner in which mr stamper executed this obligation under the contract and voided it for that reason why is that there well first of all because it's trumped by bankruptcy  in numbers i certainly hope so i certainly hope so i'll start right in with the bankruptcy law cause of action that were belatedly asserted in this litigation the defendant's claim that the district court erred by rendering a declarator judgment in favor of my clients in spite of these bankruptcy law cause of action but what they ignore is that the bankruptcy court prior to the withdrawal of the rest the reference entered an order which precluded every single one of these bankruptcy law causes of litigation over that matter the bankruptcy court noted that litigants do not have a right to a jury trial in actions concerning the allowance or disallowance of claims in a bankruptcy proceeding now we argued it minutely we argued very vigorous late that we did have a claim for distribution and that our complaint invoked the claims allowance process and that the defendants breach of contract counterclaims of the trustee were in essence an objection to our claim for distribution meaning that there would be no jury trial the defendants argued the opposite they said very clearly that we do not have a claim in the bankruptcy case and our complaint did not involve the claims alone which process bankruptcy they are not seeking monetary damages against those debtor consequently the law of this case is that the relief that my clients are seeking is not money damages we are not asserting a claim for allow  really understand from an economic standpoint why you would take that litigating with us why why get in line with the other creditors if you can get twenty million dollars worth of stock outside of the bankruptcy thing but the question ask you to reverse that order because that would deny them their right to a jury trial it was that very order that gave them the basis for getting their jury trial if that's all they were clearly not asking you and don't want you to reverse that order we would also argue under the first circuits decision of grant the one partners that this court does not have the jurisdiction to have a direct review of the bankruptcy court order there needs to be an appeal first either the district court or the bankruptcy appellate panel which they didn't understand or didn't reach agreement on what would happen if the private placement raised zero mr zuma response to that is that's not true with mutual mistake of fact as a matter of whack letter contract law the fact that the parties didn't foresee this particular event doesn't necessarily mean that when they entered into the current practice there was a mutual mistake of fact well i think that the the the response there is that the didn't understand or didn't have a mutual agreement in other words a meeting of the minds on what the closing was going to do what was going to happen of the closing of our clients testified that they understood the closing was going to raise something substantially more than zero correct that's an understanding that if the if the private placement rate is zero then our clients understood that they had no obligations to go forward that was their understanding that and i understand that their understanding is that your would have been a foreign ownership problem if g put in another five million dollars and no other money was raised there would have been more than twenty five percent ownership of the airline by a foreign entity and that was a substantial concern that the parties had  record as well so what we have there is this these two parties not understanding of a critical fact of what might have happened in the event that the private placement failed so accordingly judge wise to correctly found that this contract should be voided and it's appropriate to void the contract and put the parties back to where they were for the for the obvious reason that the shares if they don't belong to probably are they need to go back  several year period shares that they technically did not own or alternately concluded by judge last minute so they received substantial amount of money ten million dollars that they were able to use and apparently wasn't sufficient but they ended up where they are direct jurisdiction to be able to hear the order from the bankruptcy court directly for the reasons we discussed earlier but even even more importantly the notion of equitable tolling was addressed down below we didn't weren't given an opportunity to put on evidence with respect to the issue and they should not be allowed to come up to this court for the first time and ask the court to reverse on the issue of equitable tolling without having given us an opportunity to litigate the issue below but more importantly if you look at the nine hundred ninety seven agreement it does not say that any claims are being released that any claims are being waived that he claims are being from the foregoing any claims whatsoever it's just merely a replacement prayers hymns were just too full to pregnant at the time so there was nothing in the ninety seven agreement that prohibited them from bringing their claims during that time they could have brought in at any time and chose not to they didn't parties with respect to the five million dollars for the programmer's private placement so you're saying that it's superseded but it didn't waive any claims therefore they could have gone ahead sued for have and if you look at that look at that language again it says that supersedes replaces mr stampers an attorney he could have put in release one which he would have understood the import of putting in release line which then they might have an argument that they had they were prohibited from trial and that i understood was the most important least in the briefing so i would like to address that i think the most obvious problem with their argument is that they were given an option for a jury trial if you read it gundel shares from nine hundred ninety eight until the time of trial and that money damages were not an adequate remedy in order to obtain money damages the defendants were required to show that pro or wanted to sell the gundel shares would not sell them because of point it's breach would have in fact sold the gundel shares and received some amount of money something or around the range of five million dollars in one thousand nine hundred eighty eight and then would have used that amount as working capital to generate profits so the facts are very different under one set of facts they would have been arguing they needed to keep the gundel shares in order to retain their current they appreciated twenty million dollar value but on the other hand for money damages they conclusively needed to prove that  shares would have been sold to generate working capital so just last next several days are completely different you can't prove both and by putting both in you're likely going to confuse the jury and prejudice the plaintiffs the prejudice would be if the if the defendants put on evidence of these the two hundred million dollars of alleged lost profits but then also threw in the twenty million dollar current value of the shares the jury would be confused and might just choose someone number  compromise something between twenty million and two hundred million dollars judge last that it wasn't going to allow that drugs last they also said look if you're not going to seek damages you're only going to want the specific performance remedy let's not waste  majority let's not waste the party's time of preparing experts in preparing for a jury trial if in fact you're going to abandon your damages claim at the end of your kids and i think the cases none of them prohibit the election of remedies we want you to decide in advance which case you're going to put on you can't put on both cases just tell us in advance so i can manage my trial docket and i can save the time and effort of the parties of unnecessarily preparing verge or a trial because there are limits to what a judge can right to our jury trial nothing in judge lassen exporter precluded them from bringing their jury trial and could have done so so the question to ask back to the defendants is why didn't you bring your claims before a jury when you had a two hundred million dollars upside when your damages claim that only a twenty million dollars with respect to your specific performance claimed why did you choose the latter one and it's seems to us that it was a decision that was made in order to preserve what they're denied that order is reversed you can go back to judge last night without having a flat a whole new trial it's it was precisely to preserve this ability to get a second bite at the apple which is why we think they chose this route but for them that they cannot reinstated them what's your response to mr also the argument that if you go back to you he'll chose not to appeal the bankruptcy court ruling and judge over three did find that you are barred by the five i'd say it's part of the addict discussion is involved and in that point nobody knew what the reformation whether the reformation or rescission or what the nature of the rescission would be or what sort of remedy would be applied and i would