fact that the claims that the vocal plaintiffs wish to pursue in the state court proceeding in pennsylvania do not arise from any harm to the debtor in the train ox bankruptcy and further that those claims are physical injury claims which under the st paul decision of this court would not be considered a type of claim that could become an asset of the debtors estate is the complaint a larger conspiracy conspiracy between the two but your honor it would if we were if we were allowed to have amended the complaint and go forward but one of the problems with the leverage you've never made any effort to amend the complaint have you yes we submitted papers in pennsylvania to reopen the case so we could submit an amended complaint and it was that that point that the care mickey folks filed the motion to enforce the injunction with the district did you argue to the judge force that you're going to amend the complain wanted to submit an amended complaint and i believe the propre procedure would have been for a minute complaint to be filed in pennsylvania and let the state court take the first shot are not law is did she not allow you to do or did you not ask i believe that can't come here and say that you should be that we should be thinking about what you might say in answer to my question i think you have to say only once in your complaint right now ga your honor i i would respectfully disagree because we did in front of the district were to take what's in the complaint to figure out whether your claims are individual to you and and against nuclear me be separate apart from being against the doubters you're i don't think you have to do that because i think there's reversible error with regard to the the the failure for the court to limit her decision with regard to just in four sitting in junction what the court did was it said here's the injunction now i don't i find that you don't have direct claims and i'm going to i'm sorry i find that if you have direct claims they would not be within the confines of the injunction you can go forward but then she entered into a plausibility analysis once she found the direct claims could go forward she was done she looked at the complaint you know she had to decide what you were seeking and she said that as you plan it so far all you're seeking is that you're not since trying to  attack the the successor corporations as alter egos of of the debtors and that's no different than any other creditor whose you have an individual claim based by a tort client base to a chemical releases by the doctor the doctor did those things the donor also didn't pay their bills with regard to contra but there also may have had a truck driver that ran over somebody a separate tort claim like that all those claims are individual to those particular creditors of the estate but all those but that doesn't make them separate from the estate if the claim to the third party you simply will the third party is just the alter ego that's just another pot of money that the estate can have to satisfy the claims of those people who are looking to the tronics doubters so tell me how your claims are separate as played in your complain two at the end the far right arising from harm to any debtor or any debtors estate now in this situation that same language that happened to have been in the injunction and manville in the mansion the case which i was  united states supreme court about so i mean these arise from the debtors activities don't they know they don't and in manville i do is a claim is your claim for your injury is personal injury based by  to satisfy the doubters obligations to creditors of the state and that that's correct and that's why part of what we would be asserting normally has been taken care of but we have a situation where a non debtor has rinsed itself of liability that it assumed in two thousand and one before the harm to the debtor the spin off is in two thousand and five right before that spinoff new care maybe is assuming the liability that becomes direct liability that under your your paradigm of being common to all other creditors this type of physical injury of you not comedy you are a tort creditor the truck driver the poor fellow gets run over by the truck drivers work for in a critical fact undisputed i think is that the a vocal plaintiffs are not seeking a direct recovery for any independent wrongdoing by nuclear mcgee this was a point that was conceded by them below they conceded to judge for us that new committee never directly harmed them and that was that judge forrest walks through and pages seven thirty five and through thirty eight and seven forty six to forty seven of her decision where she pulls several transcripts citations there's an extended hearing in front of judge forester this incident decision by the pennsylvania state court and those close but no your honor because that indirect liability claims these these derivative claims are in the heartland of what judge forced injunction is design is targeted to to enjoin against nuclear they conceded they don't have those direct claims that's why they're just not on the on the table here what we're dealing with are just alter ego bail piercing and successor liability claims as to my client as they say to this court in their reply brief they want to hol committee responsible for tronox is torts because new committee allegedly abused the corporate vehicle that is a classic form of alter ego claim a derivative claim like this court saw in the st paul case so as this case has come up to the court the key question really is does this injunction cover derivative claims that the fight isn't over what are the claims that they've alleges what is the injunction cover and this injunction is just like the injunctions this court is approved especially the one in the twenty fourteen made off case in fact judge forrest made that link herself in the decision when she issued the injunction two years ago she interpreted this particular injunction and said it has the same scope in the same effect as the made off injunction which this court had affirmed just a few weeks beforehand because they both bar derivative claims they both are duplicative cames they also have the same purpose they came in in a bankruptcy in the context of a massive settlement in order to facilitate global peace for the settling third party their argument to try to narrow this injunction are arguments that the it only covers to particular claims the fraudulent transfer in the fiduciary duty claims that were litigate in the adversary proceeding but that doesn't scan even on the face of the injunction because the injunction says not just that it bars claims that adversary proceeding but also claims that could have been asserted and in fact details for almost a page all of the types of claims and remedies that it bars including alter ego veil piercing in succession liability exactly what the vocal plaintiffs have been complaining about from the beginning so judge forest had these concessions that there was no two claims for direct recovery for any independent wrongdoing of new committee and in light of the fact that this injunction were directed the subsidiary to do x y and z which caused toxic emissions in other words it was like a coconspirator or you know because it was so much that could be a different matter yes i think we saw the question of whether or not it was duplicative and whether or not it was extinguished in the bankruptcy case but but putting aside if we're looking at sort of post two thousand one did ngukurr mcgee independently breach some duty that it did direct its subsidiaries to do something that would be and that would be a different more difficult case for my confusion seems to me to come from the fact that people think of peers in the corporate veil to putin feels servian corporation to the to the pa many times it's an individual who's insulated itself from himself or herself a liability by working through a corporation but they dominated the corporations such a way they don't observe the corporate formalities right that it's really just them but as your honor noted in this case those allegations would apply to all of the creditors of tronox in so that the purpose of peers in the corporate veil is expanding who is responsible but not necessarily defining w nature of the problem that the dissenter had a more hard time sorting through yeah i think i think that judge cowen insta sent in a moral had made two mistakes first is he was focused very much on the personal injury cause of and not well the majority also disagreed with them so i'm not alone in this he was focused on the personal injury cause of action itself and not the substance of it as this court said the twenty fourteen made off case labels are not determinative it's the substance that controls whether or not a claim is derivative or duplicative in the substance when you're going after a parent corporation is an allegation of alter ego piercing or successor liability the personal injury cause of action isn't determinative and if it were as your honor noted every single debtor who has a personalized proof a claim against the debtor should the every single creditor who has a personalized proof of claim against the debtor would have a personalized claim against the third party in the whole concept of derivative claims would go we reach far beyond simply determining whether the injunction encompassed the claims before the district court determined that there could be no other claims no your honor i believe records in the fish the district courts extension of his jurisdiction is contrary to second circuit precedent and file a complaint and then that judge for should have to wait for that complaint to get filed to then decide whether or not those derivative claims are barred by the injunction this goes to their theory that this injunction only covers just a handful of derivative claims not the whole universe of derivative claims so they think they should have a chance to replete in a certain new derivative claims and then have a judge force consider those after filing judge force a gave them multiple opportunities to identify what derivative claims that they would go plead they had not  only their complaint which had been on file for eleven years but they fall the motion to restore just a year ago they had to briefs including a sore apply in the district court then multiple opportunities to answer a direct questions at the hearing in front of judge forrest and then your honour's they filed two briefs in this case and the only claims that they've said that they wanted to assert against new chromakey are alter ego they'll piercing and successful liability claims within the heartland of the injunction and in addition so not only would it would be futile to let them replay but in addition judge forrest found that the vocal plaintiffs were engaged in gamesmanship and that finding should not be treated lightly by this court she took that and additionally additional fact finding to say that you know what i'm not going to give them that other chance because these guys are just playing games  in conclusion or honors this injunction was in a poor part of a fair and appropriate five billion dollar settlement judge forrest found when she issued this injunction that without it ngukurr mcgee would have paid billions of dollars for nothing but their theory on this case is exactly the opposite that new comedy paid billions of dollars for nothing this injunction has in effect in barring these claims is exactly within the heartland of what this injunction was designed to stop so we think that that for that reason the injunction hasn't been modified in the court should dismiss e p o or at ninety one because there was nothing left to do this was a final decision we were left with the hobbs in choice of of going through and following the court's injunction order and dismissing with prejudice claims that could never be brought back or filing an appeal so we think because this was a final order that would have had impossible repr cautions for these four thousand through have ignored the order and then they would have  order of contempt against you like any any other injunction case which is not final until you know you should contempt with the court doesn't issue contempt towards not file we don't we don't think the court requires us to go in and actually go rudeness i mean are normally there's a perk of permanent injunction but there's no and there's a claim of a violation of it and there's and but the court doesn't hold them in contempt we say that you have to be healthy contempt before there's believe that judge force went beyond the injunction and expanded the injunction and that the main reason is that he would have to figure out the merits of her determination right and so it's basically the back door coming in i would i would agree with that which is why i'd like to turn back to the merits on two at least two points one we do believe that there are direct claims here now there was a concession and at oral argument oral argument was was extensive and many points having read the transcript and granted it is not as clear as as you or i would like but we're talking about you had time to was there was time to do that your honor however like i said it was it was like two smart people talking  across each other this is a brief to this court you're not talking past us we're this is your chance to tell us why you had a direct claim and that you were prevented from asserting it and i'm hoping that i find it i i'm i don't see it just yet i'm my we're out we're out of the trust route of claim definition which i'd like to talk about but also there is this post two thousand and one activity after two thousand and one there's an assumption of liability and then there is interaction between new mediate so they're at the very least this court should modify the decision below to allow for direct claims that are post two thousand and one that the district court went beyond just enforcing an injunction there were  claims and the court said you can't even bring up any understated claims even if they would have been something had we enforced the injunction on what was before the court we could of gone in and asserted other claims we're asking for this court to perhaps grant in part and reversed in part or reverse and send it back for additional fact finding and so that we can present an amended complaint so we can actually get off to the right on the right foot with regard to the claims that we'd like to certain pennsylvania because we reserve decision