tampa judge marcus is in miami and judge bush is in louisville kentucky as marcus and i would like to thank judge bush who's here here from  circuit assist us on deciding these cases this morning judge bush judge marcus and i had hoped to welcome you personally in miami but obviously present circumstances made maycock of the circuit executives office advises me that counsel of the president and they are ready to proceed and iced tea so is our courtroom deputy and she will serve as the time keeper of this morning and she will appeals but i can advise you that we've read the briefs and we've examined the relevant parts of the record if that will assist you in confining your arguments to the issues on appeal so again with the st case this morning not party to this case proceeding in their pending litigation in new york state court against an insurance company onshore which is also not a party to this case so in other words like the bong orders th have issued the final settlement payment without the bar order that only provides that the final settlement payment which is a defined turn into something that would not be paid without the bar  case it's just a straight up occasionally the law to the terms of the party settlements which are which are in the record and just based on that just looking at the terms of applying the law to the contract and restructuring the contract that and ask you a question about the terms of the language in the agreement they claim and says among other things quote the parties understand and agree that their settlement is contingent on the district court approving this agreement and that the parties shall seek the issuance of abroad or bar or in the f t c action parties had that unique provision was that the case law was basically scarce and th circuit regarding what's required of all of them what kind of bars could be approved and eleven the court here are some of them are relevant and have been there are some factors that apply only to a plan of reorganization but there are other factors that apply in general such as the interrelated them of the  liability for the receiver in that new york suit no not at all is there any liability for queiroz in the new york suit not at all the new york suit is strictly a breach of contract claim by approve the bar order to allow a bar order barring the claim that separate independent from what's going on in the receivership case with a non party claim against another nonpart settlement agreement and the motion for approval by the the district court and in the memorandum the parties seem to argue that the entry of the bar order was a necessary comp that i am sure is willing to settle for is contingent upon what they call quote global peace with respect to all claims that could be asserted against i am sure relating in any way whatsoever to the policies or to i enjoy his obligation to pay any insurance or any of the insurance current or former attorneys including the i have a action the bar order is ancillary relief to the f c c action at another point they say the bar order is necessary to secure substantial additional consideration at another point they call it integral to the settlement the district court looked at all of that and what i want to know is why his determination was an abuse of discretion i think you're right that this is an unusual case we've never had one w conclusion that this was really a big deal the bar order that it was a lot of the agreements to buy peace from permanent litigation your honor i see expired that no good answer i'd be much appreciated yes your honor if even if the abuse of discretion standard applies it will be an abuse of discretion because the statements in the party is not evident in the evidence of the parties agreement i by the agreement among the settling parties and the definition of essential is whether three the litigation would continue among the settling parties themselves and it would for only the one million four hundred thousand dollars and that's why it would be even if use of discretion to say district court was not free to consider the statement by the parties in support of the motion for a bar order and it could only look at the language represented by stephanie trey band first to go to the point that was raised by both judge marcus and judge wells and the standard of review is abuse of discretion the th circuit has made that very clear when the court is considering bar orders it reviews the bar orders for abuse of discretion it is also clear that the district court has very broad powers and very wide discretion when it's exercising its equitable powers in receivership like this and in connection with bar orders to also go to judge marcus is point about whether this five hundred thousand dollars  the entry of a bar order at least into receivership contracts we review it for an abuse of discretion but we've also said that a bar order is extraordinary it's an extraordinary remedy and it is to be used cautiously it is a high standard and that's why in this case the parties made it extremely clear both in their written settlement agreement and in all of the supporting papers when they moved for approval of the bar order and the district court and the district court went to great lengths to consider all of the facts and circumstances in determining but that one more than one quarter of this settlement the full settlement payment was absolutely case yes it is not essential well no the release is not the only the most important thing about this bar order the complete resolution of this litigation was not just the release of but the payment these parties worked really hard it was a hard fought settlement to get to one million nine hundred thousand dollars the receiver and the other parties were not going to walk away from the table for anything less than one dollars and i am sure was not going to walk away for anything less than a bar order the only way we got there was by conditioning this last very significant part of the settlement on bar order i don't you know everybody's talking about this gratuitous payment of five hundred thousand dollars that's a huge amount of money and it was important it was really important to the settlement it wasn't just a bonus payment it find actually under the insurance policies because that i f a was born out of and completely dependent on those insurance policies and under those insurance policies mr kyrillos is the covered person so those are his defense c have the money was going to the law firms was and the money there was money was going to mr kira's and he was able to use that for his sense cost and the law firms were approved there were four dollars approved law firms little off the the law firm's claims are only against the insurance company because the law firms are trying to say that outside of the policies they had some independent contract with the insurance companies and that's not actually the case they're only suing the insurance companies however because they're suing the insurance company pursuant to the insurance policy that policy is owned by the receiver and kira's is a covered person under that policy so yes mr careless and the receiver are involved in that litigation even though they're not parties to it but the global resolution is the is the is actually that is this claim is this litigation over these insurance policies that's been resolved and this is the only thing hanging out there it's your contention then that the lawsuit between those and the law firms  essential to this to the to the settlement we're looking at now that the bar which includes this bar order against the law firms for proceeding against are unsure right what's essential is the bar order flip it around the bar order is essential to the settlement and the settlement protects the receivership states and that's really the issue here that's where the discretion comes in the court discretion comes in because there is an equitable there's an equity receiver here and this insurance payment goes to the benefit of the receivership the state and the receivership the state is losing out of this last five hundred thousand dollars payment that's going to go to creditors and investors to the estate it's losing out on it if it doesn't get the bar ordered that bar order is extremely important it's essential this this settlement is not done if that bar order is not him for lying litigation involving the interim funding agreement it seems by that was intended that agreement was for the proceeds to go to law firms and in order to settle suit there was a bar order entered in this case which provided five hundred thousand two hundred and fifty thousand of it going to going to the receiver was intended to go to the receiver and the receiver was to distribute it and half of it was to go to creditors and investors pursuant to the agreement that that think like a windfall to me to the receiver because the receiver doesn't really have any rights under that agreement as most quiroz had the rights but the monies were going to go through quiroz to bill oftentimes so it does seem like a windfall to well here to beginning this at least two hundred and fifty or the interim funding agreement is actually something that was ripped up right this was an agreement but went away what what the receiver owns is the original insurance policy it was a dollars policy and i really don't want anybody to forget that the reason that that ten million dollars policy was settled for less than two million dollars was because of the reason that there's a malpractise case these law firms failed to give notice to the carrier and that's why it was such a hard fought battle to get this one million nine hundred thousand dollars and why the insurance company didn't they were giving  million dollars on a really weak case and they wanted complete resolution to do that the i f a which was between mr kira's and the law firms is part of the policy it defense cost its proceeds of the policy that is owned by the receiver it's asked it's the opposite of a windfall the receiver the receiver lost out at all and the covered person what was a ten million dollars policy i also hope that the the panel does not miss out on the fact that that i f a they're seeking one million dollars under that agreement of mr kiruv has the fence costs for work done in three months and judge dale's point the district judges point was what they're getting is two hundred and fifty thousand dollars as far as the fairness goes for three and a half months of work so that's why judge scales looking at all of the facts and circumstances and exercising his very broad discretion here considered very carefully all the facts and circumstances and determined this was absolutely essential and this was a good judge marcus i just have the bar order they use the word contingent very carefully you actually pointed to that and there are any other language the five hundred thousand dollars payment will only be made upon phonology of the bar order sure my time is short i only have three minutes and so i don't want to rehash arguments in the briefs or the ones that mr mr scott is already made i just want to highlight a few points based on some of the questions that i heard during the initial presentation as to whether the settlement is essential the appellant is asking the question in the wrong way by focusing on the releases and what happens whether or not a payment or a bar workers made question is what this case has settled meaning would the claims between the receiver irish or and carol have been resolved by a settlement in the st place if not for the board and i can tell you without getting into privilege and things like that it is set forth in our briefs and i believe judge marcus referred to the the settlement provide or not provide i mean it is pretty clear what the settlement says about if the five hundred thousand is paid or not depending on a board but when evaluating as a matter of equity post the court in equity in a different kind of a case was obliged among other things to discern the meaning of a card trick and the con its face was clear and unambiguous with the fact that the court was sitting in equity allow it to consider extrinsic statements by the parties as to the meaning of the c deciding questions of law not generally is the rule but again this is a completely different context where all of the facts and circumstances should be considered it's not just the language of the contract infests all it the contract is clear only in so far as it states that if a border is not entered the five hundred thousand dollars payment is not made but that is not even the beginning let alone and of the question of whether the border was essential as the term is used in this circuit and in others to whether the settlement would have happened in the st place and it would not have happened in the st place there would be no resolution but during the  terms also just to highlight one other point if i have the time to be clear under the i f a the law firms were entitled to nothing under the policies  on its own terms and ambiguously to continue with the discussion from the panel did not identify the law firms as rd party beneficiaries to the contrary paragraph nine of the i f a spoke specifically as to who the beneficiaries were it was of course keros because it was to fund his his defense costs and his successors errors in assigns it did not list the law firms judge gayle's when he was analyzing this whether to enter the bar order had to engage in effect specific analysis to look at the strengths and weaknesses of the new york case as they were presented to him as they were presented to him by both counsel for the shore is willing to pay a total of one dollar if it could get global peace as its as it pertained to to it overall i would not and i'm sure was willing to pay more than one dollar in order to get that global peace which was five hundred thousand yes two hundred and fifty thousand of which judge gayle's determined was reasonable to go to so twenty five percent of the maximum claim that could have been awarded under the i f a was going to go to the law firms there's been no case that says that that providing compensation like that are part of it was not sufficient but your position that queiroz could have to the law firms no i'm not saying that your honors but there is a provision that it could have if if irish or had approved other law firms that he could have used for other law firms there was no other law firms approved other than the two that we're dealing dollars that refers to the approved by our shores subsequent to the execution of this agreement so was contemplated i believe that other firms could be could have will be will then go to the law firms that won't stay with quiroz would yes and that was the point i was about to make its clear that it was only defense cost it's not for funding any other purposes like living arrangement or or whatever it's just that the clear that they were to be used for the cost of defense but it was not necessarily to be used for solely to pay later on cost grow or m s k and the other point that i would like  making clear that the asset freeze would not be violated by any payments of the i f a the receiver himself was also asserting claims against irish or it seems to have gotten a little confused in presentations today as to whether the receiver had claims