you two steps to get to that conclusion the first one is if you look at just the claims against mr dirksen those are legal money damage claims that require a jury the second step is if you look at what the trial court did he took the sol those the founding that he made and mr dirksen pardoning you waive the jury crime with respect to mr dirksen you didn't present there when the court ask you to come forward with your you didn't raise their hand until the motion for reconsideration is that primarily on contractual jury waivers they also primarily moved on fraudulent transfer and then they put a foot now about breach of the sherry duty that's what was in the motion to strike we then amended we answer it the same way we answered contractual waiver do so then we move to reconsider and pointed out that he had not the judge had not seen the footnote and pointed out the other reasons that the claims that had been moved on how they were legal money damage claims and if you look at and then there has to be an intentional knowing relinquishment of that right and there's lots of cases about that so that you can preserve your seventh minute ride and it's hard on this record to say that the plaintiff hadn't tried to do everything possible when there's responses to the motion there's motion reconsideration there's a mandamus there's a motion to clarify the record there's a motion to amend and certify i mean every step of the way the right to a jury trial has been asserted there's nothing in the record that indicates in a knowing intentional relinquish that it's a different thing to say that you have to have annoying and intentional waiver of a jury right is a different thing from saying the lawyer didn't make the case we have a case in the circuit which are i don't know if i i would sign on to but that says you can't make an argument if in a footnote so i don't know but anyway i don't want to take all your time on their books but the rules do just require you to demand the jury that's that's really the problem is what's demanded so that's fine but then once the motion to strike was made then the question is what level of response do you have to make to the motion to strike all that i think that's what we're getting at it doesn't have to do with originally with the you waived it has to do with whether you made the appropriate arguments in response to a motion to strike the jury to exactly the arguments that they made and which is in a context i mean and we're not talking about having all sided a bunch of employment cases about legal and equitable remedies haase this is a bankruptcy case and in the context of bankruptcy it's not unheard of that we don't have jury trials on stuff so that the context in which all this is being filed in my opinion is a bankruptcy case sanat research in a bankruptcy case and that is a context in which strik injuries is not unheard of well and that was one of the issues that they briefed in the body of their motion was the long and camp issue and that was definitely joint issue in the the district court disagreed and that was part of a motion for a hearing as well to point out that he had made a mistake and our opinion on the application of the london camp opinion to this case so to say it was bankruptcy yes but that was the issue they raised and it was joint issue f all right let me ask you this because this gets back to all these employment cases that were cited the you he said you state this legal proposition that once anyone in the case is entitled to a jury on any issue in the case then the whole thing has to be tried of the jury and then he cited all these employment cases that dealt with different remedies and claims with the same parties so john versus jane have been a right of injunction also having a right for money damages and so on and that those need if any of them are to go to the jury they should all go to the jury i don't see that is fitting here i mean to me that is what i think you do with this was it not proper for the judge to try and once that's tried then you can see what's left of my need to be tried against turks and if the contractual waiver was valid i know you don't think it was but let's say for argument it was then why isn't i d r course of arisan subject to a non jury trial and then if you have something left to be tried maybe dirks and gets a drew draw maybe doesn't we can analyze that but that's down the road much like that's how we work arbitrations there's a part the ghost arbitration we send it we stay the litigation then we come back to see if there's anything left to try why would it work the several liability on the promoter liability claim so you can't just do brosnan and then do mr dirk's and it just doesn't work that way and the second thing is the united states supreme court says you don't get to do equitable first and then whatever's left over do the legal because that's the way that none of these are cases that are even remotely similar to the factual and procedural pattern here i mean i went and looked at those because i'm like is there a case about this and there are all these employment things we're talking about the same parties who have different causes of action some of which give legal remedies some which get acritical we're not dealing with a situation where you have a bankruptcy case with a main player being pariahs and against another main player being id york and its litigation trust and then you have these other potential players like dirksen and is a much different one than if we're just talking about straight up what's his duty to i d r so i didn't see and maybe i missed it any cases that were remotely similar to this case that stood for this proposition you were you were announcing but help me if i missed it the court this court refused to say all bets are off we're going to track to what is equitable stuff first of course that now we're going to look at the nature of it and you get a jury trial on the actual damages that so you were not a jury trial just because there were equitable issues  i know but let me let me come at it this way are there any cases where again this is assuming the directional bay where was about i know you disagree with that i'm not i'm not having you give that argument up but assuming argument it was that valid do you have any cases similar to that where one party a versus b they waived the jury but there are also potential claims against sea and they said well if c has any possibility of a jury trial everybody's got to try and prove the jury on everything and this contractual jury waivers just because at the end of what might be that the entire claim is submitted to the jury but to the extent that there are overlapping common facts enough on part of those you require a jury and what the united states supreme court has said is the way you protect that is you do legal claims with the common fact issues first and then you do the equitable claim and that which case do you think is your best case closest to our facts and our procedure that you that you're hanging your hat on the u s supreme court case in which one the one you want me to hang my hat on i will go back and look at them but the ones we saw her dairy queen beacon and a little well the other thing your honor is when you say that well if this is fraudulent transfer is equitable then we should do that first and then we'll figure out the other part we don't think that france will transfer apply here is equitable in a resolution to get there what the district court did in one of the defendants convinced him to do was to look at the prove the claim of the bankruptcy court but here that private right legal claim for bras will transfer to spot brought by litigation trust in the district court wait a minute it wasn't brought by the litigation trust originally was a litigation trust that didn't exist i mean this is a claim that as i understand it is  the debtors client and the debtor transferred those clannad migrated it got transferred and this is not at all uncommon as you know got transferred to this litigation trust but it's the debtors client that when it got ultimately resolved it was to say that if there is a recovery here on the fraudulent conveyance claim then the claim will be reopened in the bankruptcy court so the claims process takes into account to this good day the fraudulent conveyance cause of action is it as it would have to under five hundred to do you can't just blow it off some or he's got to deal with it the regular claim is in them and they in the case you can't go ahead and resolve the claim that's been filed in the case until this fraudulent conveyance thing and this whole thing was set up to honor  nsfers are not tribal in a bankruptcy court there's an article three question out there that's an open question it might get answered in bellingham but stern says there has to be necessarily resolvable as part of the claims allowance process and five o two d have that effect well but courts do it all the time i mean that the bankruptcy court can lift the stay and let something go forward state court and then resolve it they can withdraw the references so that the trustee can go forward in the district court and then go back and resolve it because it has to be resolved at some point doesn't mean that it will necessarily be resolved within the claims allowance process well i understand your point but this court the bankruptcy court was yes it was a bankruptcy was very careful about saying this claim is resolved on last the fraudulent transfer claim somehow successful whereupon i reopening it's not over with so you know the question is is there close enough for government work well if that's your answer is no answers no yeah my answer is maybe but and the other thing is that there's no proof a claim says something to the fact of and you know this breach of fishery do these kind of flaky anyway because you haven't really timed this nine million dollars to anything dirksen did and i wondered you know does it you don't get a jury trial on  whether you would otherwise get it or not so what what is it the derricks and did that cause nine million dollars in damage well several things this is a corporate spin off or they're spinning the stock subsidiary of horizon they don't have a board the war can authorize stock if there's not a board they didn't set a prize they didn't prove that they paid for it there's no contract to buy this so they just purported to act that subsequently but at the time that they were acting as a promoter there was not a properly constituted board because it was wired to parties but be at rector's at some point there wasn't some point there was a board and i or ratify some actions that occurred prior to the board i guess big well after the span of right before the spin they tried to get two of the board of directors for the new board to sign a consent that would authorize katich yos authority to sign the distribution agreement those parties though however when they got appointed after the formation of a yard after it was going up formation but after it was spun off the whole board courted three of the other  government million billion but you know there are there are other conduct issue your honor because it was more than that is the way they set up this entity in the spans what they do is they have this one had a tax sharing agreement so it other contracts but the put the other suburban there along with the nine point william one dollars in debt and with testimony as i understand it that those agreements which are common that there's all kinds of workarounds that you can do with respect and they are not as they are not the obstacle that they are set out to be that you set them up to be i mean i think there's testimony that the judge could credit there's that's not a fatal but i think that was affected she for the jury to decide whether or not what mr direction of rosin did as promoters on this company was a breach of their fiduciary duty in the capacity of a promoter that this company in a position of an undertaking limiting itself on its ability to go forward with financing in structuring and whether that was a play a part played a part in the ultimate demise of this company mr dirksen get ill gotten gains is there something for him to disgorge know that's why it's actual damages ok so if the judge is right that there's no link between his alleged wrongful acts and the alleged damages we're done with that issue do you have to have actual damages unless you're making a discordant sort of claim and you're not making that up but we haven't even tried causation the judge just assumed that there was no causal what he's saying is you haven't as you haven't played you haven't argued in this n bunch of documents and arguments you haven't really made that link that's what he's saying and so i'm just trying to understand he i don't want to go through this whole gyration about a jury trial go back and you have a jury trial and then you get a directed verdict because you don't to i want to understand the lay get i'm still a little bit lost or why when he's acting to authorize agreements distributions of nine point one billion dollars when he's imposing these agreements that put the company in a position that it's not able to meet it then there's a question of whether or not that rendered it unable to meet his obligations on and going forward basis and if it did then we have a right to a jury trial to decide how much damage s that cost thank you rogers i represent the for rising defendants but i'm also here today presenting arguments on behalf of mr gibson this court can affirm judge fish's ruling that makes the following four findings first as we've discussed that underlying  camp in this court's decision jensen plaintive had no right to a jury trial on its fraudulent transfer claims those were played soley against arisan which filed crucial claim in the bankruptcy judge king as you noted those were only provisionally allowed subject to the outcome of the fraudulent transfer litigation with regard to the non fraudulent transfer claims judge fish did not abuse his discretion and it's an abuse of discretion standard in finding a plaintiff would forfeit the arguments that it wishes to billion dollars substantially in excess of the debt that it took on as part of the spin off indeed that evidence of the two week bench trial overwhelmingly supported that conclusion and lead judge fish to conclude that there was no evidence supporting the con result and finally the judge fish complied with rule fifty two c when he found that in light of his valuation insolvency finding plaintiff's claims cannot be maintained as a matter of law judge fish certainly did not in giving plaintiffs the order to show cause processed a briefing opportunity that the rules did not even require if the court reaches those findings it does not have to address any of the alternative grounds for a firm as we set forth in our brief nor does it have to address plaintiff's challenges to the pretrial rulings because those are also sealed by the judges post trial decision i want to understand the whole jury because everybody's got a lot of time on a jury question i think it's a very fair point to spend a lot of time on their argument is even if this is true that the prodigal and transfer could be tried to the bench because in their view claims against dirksen are made that are legal and those have to in their view be tried to a jury er everything that could bear upon that including valuation that could bear upon derksen has to be tried to a jury now as i said i struggled with finding a case that said that and at least as far as which all sided it didn't say that to me it said claims against a party and did talk about different parties but it's got some superficial appeal from going to whole dirksen to the finding than i do york versus trust versus dirksen should they get a jury trial on that if they're otherwise entitled to it is that what it was your sponsor that so i drew i'm not aware of a case that is held in a case where you're suing the main party you claim did wrong and then adding a affectively a tagalong defendant as to whom damages are limited to preexisting insurance not limited by the bankruptcy court as part of its equitable balancing between the rights of creditors and the rights of the company or the interest of the company is going to be emerging to be in banks right now if there were a legal claim against mr jackson could it be tried to a jury separately i'm not aware of a case that on point one way or the other but i guess i'd like to start before that question which is first plaintiff's arguments that their claims against mr dixon ought to have been tried to jury simply weren't presented to the judge they weren't presented other than a short footnote that got the long in the fifth circuit and we thrashed around without a little bit i guess i would rather understand do these supreme court cases are dealing with these employment cases in the one tortious interference cases whatever do they require that whatever might come should go to a jury be tried first of the jury and then you deal with anything else or do they allow the process that was engaged in here which is i new york trust versus horizon on friday only transfer either under contractual waiver or under the theory of it's equitable because it affects claims processing we're going to try that one first non jury and then we'll see where we're at i guess looking good i'd only it's not good scripts of what happened here on judge fish concluded that plaintiff didn't have a right to a jury trial on any of its claims one side or the other or if if the court were not inclined to find the judge this abused its discretion by holding plaintiffs to the arms they raise it's highly faction i think the next issue that comes up before the court is the question of harmless error who's going judge fish did try the valuation issue because he recognized the plate of really has one claim they played all under eleven captions but there one claim is that the business that the rise and spawn off was worth significantly less than the debt that it took on as part of the spin off and judge there's of course found after the two week trial there was no evidence to support played the style you wish inclusions and there was overwhelming evidence that supported the proposition that it was worth at least twelve billion and likely worth  based on the price on the new york stock exchange which is the twenty six dollars and twenty five cents on the day of the spin off went up to thirty seven dollars a share by may of the next year and was still above twenty four dollars yielding a twelve point five billion dollar valuation in november of the following here so this was overwhelmingly shown to be a solvent company that cuts the heart out of all of plaintiff's claims there would have been mean under the inferences from the facts so overwhelmingly and strongly pointed in one direction the defense direction that this is the kind of cases to which any error as the jury trial would have been harmless well their argument is though the judge fish is the whole area of whether the expert would have really gotten in for the jury and all that but spotting them the argument that that expert would have been allowed to testify in front of the jury then they're saying there's a fact question on valuation that we're talking to a jury to resolve because we have these legal claims against turks and if we didn't wave them by not briefing them fully in this messy process your are going the question whether the the inferences from the facts so strongly point one direction's actually went through this court testified mr taylor testified for example that the market was not informed of a variety of facts about the spin off the record showed it was the jury's not allowed to disregard those facts they were and just as a for example made this point in our brief one of considered very important was that the market was unaware that the profit margins on the print business the actual yellow books i was higher than the profit margins on the then pretty nascent internet business and the record showed six different disclosures of that very fact we still had no explanation as to how it is she missed them the jury would not have been allowed to disbelieve the documents there's no testimony the documents were made up after the fact the fraudulent the jury would have been allowed to disbelieve the documents and believe mr taylor that this fact wasn't disclosed and things like that word documents show disclosures over judge fish found that allegedly undisclosed facts were immaterial as a matter of law those are kinds of things that the jury is not permitted to prefer is taylor's testimony over the papers saying that had there been a jury sitting there he would have struck her testimony whether he would have struck her testimony or he would have allowed to testify and then granted the judge was matter of standard valuation methodology in at least two ways first by double counting taking the same inputs and using them twice to reduce the valuation of i d r second by taking what was unquestionably an outli valuation using that what's called a discounted cash flow methodology team in that idea was worth about five or six billion dollars no one contemporaneously had a valuation anywhere close the patriots on page four one one six of the record on appeal was twelve point four billion dollars when they ran through stress testing in this is on page four one one five the lowest they could come as the driving force and that's exactly what she didn't just violated standard valuation methodology no more than a chemist who uses the wrong test who's test for an acid the way you would test for a base a valuation expert  that even if there should have been a jury trial that we are permitted to look at the evidence that was presented at the bench trial and say this evidence would have been sufficient to go to the jury on value and therefore it's harmless here that's your i  sure i'm hearing things quickly so is your position then that it would have been evidence insufficient to allow a jury to consider and render a verdict or that no reasonable trier of fact could have rendered a verdict contrary to the judge weeks of their best shot on valuation and found that all that they had was an expert who violated standard methodology ignored disclosures that led her to disregard entirely the value put on by the public equity markets that there's nothing there that there would have been this or there's no good spotting to change that there is a jury trial claim in this case there's absolutely no reason to send it back but there's not a jury trial claim in this case and even if we get past the arguments are you allowed plaintiff to raise the arguments that they didn't raise in their so reply what they asked the judge fish let us phylicia reply so we can have the first word on why our three new counts nine ten and eleven are legal and need to be tried to a jury and they then said not word about why their legal all they said were that the contracts the spin off contracts didn't waive the jury right as to those claims on reconsideration they didn't say the judge fish here's why you're hearing a whole host of new arguments from  before they didn't even tell a judge fish in their reconsideration motion you missed that footnote in our brief reciting jensen they waited till the reply to tell him that and so judge fish did not abuse his discretion in finding that they wa credit guaranteed reman but they're written in incredibly broad terms i do york and arise and bilateral both give up their right to jury trials on any claims arising out of the spin off regardless of the counterparty mr dirksen signed the distribution agreement as an agent of arising under the trusts indicates he is absolutely allowed to invoke that contractual waiver against idea and idea or it's true the trust standing in the shoes of the debtor is not allowed to when that time that's for the enforceability of it they just let me just ask you on the jury waiver can we use cases see there's a case isn't it dealing with arbitration clauses in talking about what order you do stuff and all of that arbitration you've got this federal policy favoring arbitration much as a federal policy favoring bench trials so can we use those arbitration cases to help us understand what we do in a jury waiver case that's not going to arbitration but is going to wait you know duly constituted appointed federal judge i think you can your honor i think i agree that there is no comparable statute to the federal arbitration act the federal jury trial waiver act but this court has recognized the obvious point is a prime example of it in a spin off context in the distribution agreement is the absolutely need to transfer the business created this brand new company that's in it for civil contract it contained a clear and unambiguous all capital letters jury waiver clause if it had been an arbitration clause i don't think there'd be any question that this case would have had to go to arbitration and wouldn't have been heard in federal court at all where plaintiff instead is able to file a suit invoke bankruptcy jurisdiction identify this is that's related to the bankruptcy case on the civil cover sheet i don't see any reason why you can't enforce this provision of the contract the same way all the other provisions of the contract on force ok so what about their argument that essentially there wasn't an i d r to agree and that's that they've got this argument about there's no brain in all of that and so therefore you really have an agreement with yourself and that's not really in force your honor if that were right in the distribution agreement as a whole would be unforced of all the entire i mean all spin offs w impossible because while you're dealing with a wholly owned subsidiary you're really just one in the same all the duties flow up to in this case of arisan shareholders and so there's only one group that you're working for the best interests  and the testimony here showed that horizon shareholders were going to be better off with of a rising without i d r and id are going to stand alone basis because in two thousand and six directories companies were being valued at much higher multiple the day after the spin have more than they had before that that their shares in for rising plus their shares an idea crack she worth more than their shares in verizon had been the day before even the horizon no longer had this twelve billion dollars plus company within its corporate brown so that's mean that was the spin off transaction or not tell them because it all you know is anadarko and less like finals and trying with all recognize because all of the interests flow up there's really no other way to have a contract if the subsidiary were insolvent to me and you are not allowed to spin off an insolvent subsidy there the creditors do have an interest but here is in this goes to the question what's the harm creditors invested in one way or another about nine point one billion dollars into this company in fact there was so much interest to invest that all of the classes of debt even the unsecured debt was substantially oversubscribed so there was there was more demand for the debt than available the interest rates were actually lower than the bankers going to be necessarily resolved in the claims allowance process just as you know under section five zero two did in order to resolve the proof of claim that were filed the fraudulent transfer claims had to be resolved and at the core of the fraudulent transfer basic fact pattern because that basic fact pattern had to be resolved under section five a two d judge fish could have used lying in camp to find that there was no jury trial right as to any claim he chose not to do that but it's another alternative ground for concluding the judge fish reached the correct result let me ask you this just straight out do we have any cases that tell us when an a and b have a waiver of a jury trial and they is we ask ourselves is there really a claim against mr dierks and as to which a jury demand was made as to which arguments in favor were preserved and if they were preserved do they have a right to that jury trial notwithstanding the contract that mr jackson signed the contains the jury trial waiver notwithstanding the fact that the core issue how much is the company worth is going to be resolved as a result of five o two d as part of the claims allowance process so there are a lot of  question as to see whether the decision to sue an additional person who you know they asked for nine or fourteen billion dollars for mr dierks and the available insurance which is caps as judge fish found there remedies against him is in the two to three hundred million dollar range and this is very much the case of attempting to use a tail to wag a much larger dog and if i can circle back to that so the claims against mr pearson are basically breach of reduce your duty claims counts under step two the question is what is the remedy that they're seeking one that is legal or equitable now in the run of the mill case and prayer was one of the one of those cases your they were able to go after the director for the full value of the dividend that's not true here in the plan of reorganization the bankruptcy court i mentioned earlier struck an equitable balance where mr dixon as a former officer has a right of indemnification against the estate so any claims brought against mr direction are just going to filter back attention to getting paid out by the estate so the bankruptcy judge in order to balance the interests of creditors in finding sources of money to pay off the debts that are really getting a haircut in bankruptcy struck a balance and equitable balance and said there's this pool of outstanding money insurance money preexisting insurance money the extension of claims against ideas officers and directors that's your source revenue it's not going to be any claim that's indemnify bill against the company and so these fourteen billion dollar claims are really two hundred million dollars claims and i think that where the bankruptcy court has as an equitable matter the stablished the limits on the relief it would be entirely proper for this court to view that remedy in this case even if not in the run of the mill case where there is no such limit where the banks were hasn't made that balancing the view that as an equitable remedy and if we have a historically accurate claim and an equitable remed then there's no jury right against mr dixon as to those claims thing that amazes me is here we are you know now we're not not yet in an hour but we've got all this time and space devoted to mr dirksen and he got a footnote and he didn't even get a footnote john now the photo is just lame the claim for today if he got a footnote in the finance preserved his argument which would not i'd suggest that you look at the footnote  the footnote in the opposition brief doesn't mention mr gibson's name it just says we saw it money on counseling in four therefore our claim is legal citing jensen which says just the opposite says the mere fact that you see claim and i bet the judge in his first decision overlooked their footnote and as i mentioned they didn't point that out to the judge until their reply brief on reconsideration so that footnote didn't even mention mr dixon there was no claim until reconsideration that the counts against mr dierks and subject were different analysis or could be viewed differently in any way shape or form than the counts against what you're saying we should apply the abuse of discretion standard of review to is judge fishes decision to say get that you every time somebody is unhappy with you you can't even come runnin and you have you know you just never get anything you never make forward progress basically if you have to constantly reconsider so i get that i just am trying to understand your point to our standard of review because typically when i hear forfeit in error i think a plain error of you but you're really talking about the judge's ability to manage the docket and say look i'm all this and wants to act leon and so the abuse of discretion goes to his decision that reconsideration not to consider the new arguments and if he was of the fact that something is a constitutional right doesn't mean that you can't lose it by your conduct or lack of our conduct for you exactly so we're just trying to get at a judge can run the courtroom and can say look i'm not go listen to the third or fourth motion for reconsideration of the fifth this or that i need you to make your arguments and we move on and i wish you had a really good reason you know your dog ate the homework whatever we're going to move on and your opponent is saying that's wh reconsideration only appeal the motion for reconsideration in this court said that doesn't change the review of the legal question of whether or not the judge was riding so the question is was the judge right to strike the jury in this if reports and the e mails that are there and he says nope this is a fact issue when we closed our case they got it in the for judgments matter along again he says no there's a fact issue after it was over they moved again renewed their shit motion for judgment as a matter of law and said by the way you go ahead and rule there is no evidence so that the fifth circuit will know that this is harmless error and we can use that in the appeal again he says no there was a disputed fact issue and i don't think we bound by that i mean that is a question of law whether there's evidence to that would have been sufficient to go to a jury since we're looking at the harmless or not or or not of had not having a jury that's a question of law yes we give some degree of deference in the sense of we want to know what the district court did with that but i don't know that we're we're bound by what judge fish thought about whether they were facts or not i really and we are going next was in the name of the record shows is that there is a battle of the experts and you have th expert relies on just false information other words there were disclosures an expert says there weren't and so on i mean then can we credit that expert even under dawber you can't just rely on false evidence well just fish found her to be highly qualified and if you compare it and understand but then what she did was she went through and what she did was went back and used arises own numbers that they had given to him blokey to do the solvency opinion for spin and that's where she started  and then she made some adjustments and he weighed the experts and decided which one to believe as a fact finder the problem was there were two problems with what she said first problem is she gave put no weight whatsoever on the price the market put on the stock which certainly supported a much higher valuation than the one she arrived at and by the way it was not just a blip on the screen on the day of first trading which you can understand but it was a value that was sustained for quite a while and the second thing that she did was that you know women the second i convince myself of forgotten the second point but she had two major flaws and what she was arguing for the valuation here which i don't know whether it's enough to say that she didn't have a case for the jury that's you know a fact question but i mean the reason she explained and she  and interestingly enough after the fact that the range within the range well you're on about what happened was they go on the road shows they give information to the lender the numbers linking to what the company can and can't do in the real world issues like engaging in an imminent activity issuing stock and buying back stock accent or if so inside they're saying this tech sharing agreement is going to be a problem for id arc after we spin it off but we're just now i'm going to say all that harding down those have been removed from the data room so there's some difference there so you get the numbers for the lender sub and then what you do should go up to the probably market and they're going to look at what the lenders rated the rating agencies did for this debt so know about ownership of the stock or in validities and tile and the like that does affect commercial value there are other things that the market did know about the biggest difference between electronic directories there's some information  market but that's not the full extent of the difference between the profit margins and how those were going to eat into the print industry i talked about the t s a there's difference in the regional markets and there's also their own valuation that they didn't put out there so there's lots of evidence in the record of this is the same evidence judge bishop was talking about in motion for summary judgment and even more so you've got this in there why not to the market you've also got other things in the record about value there's the mckinsey report that confirmed that revenues are declining there's all the emails there's the management there's a morgan stanley valuation of seven point seven to eight point five billion there's the balance sheet there's a balance sheet insolvency so there's a lot out there that to just say this was harmless error and there's no fact if you judge bishop spent sixty six pages going through the evidence trying to get rid of them and discredit the evidence that the plaintiffs they put on for over a week in trial so those are some of the issues i want to go back to direction for just a second he didn't follow her grand plan so i don't see how you get there that to make him to focal point was really just to show you that he's entitled to a jury not to minimize the fraudulent transfer claim here does not extinguish the right to a jury in this case just the dates on it doesn't war all the courts in the circuits around the country when they look at this what they're looking at is whether that claim is resolution process will resolve necessarily resolve in the way that they are in analyzing that is not the same way that your honor is out i don't think it has to actually be a necessarily resolution of the process say is i didn't get time to talk about it but i disagree that the producer duties always run up the cases that they have on that are subsisting companies where there's a conflict in acting between the subsidiary and the parent company the spinoff you don't have that same kind of conflict in your operations that would make you need to defer to the parent company so that's one point the valuation found in your honor and your point is that's critical in the dirksen case whether or not it shifts your changes and it's also critical in the damage model so we think there's a right to a jury trial against brosnan as well and definitely a brothel transfer that aiding and abetting the problem so to just turn this into  dixon story is not the way to do it i just thought that was easy way to make it clear that we weren't outage or thank you thank you there's nothing easy about any of this sucker shake both sides arguments and we're going to take a short five minute break before taking up the next case