before the bankruptcy court and provides a very clear statement of the law which is that the five should be seven caps calculated without regard to severance payments or post petition including those that come from letters of credit to the bankruptcy warrants security you don't apply those payments in the letters of credit but that is the law of the case as far as the bankruptcy court here yet the same members of two of the same members of that panel have said in another case what they meant w and we'll have another side saying part it's noted factual error it's thought the letter of credit here was unsecured but in fact it's secured even if you're right about how that's going to play out then they can come back to us after the whole thing is  developed in the records of course yes but in terms of avoiding piecemeal litigation if you just roll efficiency i think we have an opportunity now to state what the law clearly years and provide the bankruptcy court guidance on what because there are there are pending matters before the court it's going to possibly come back to this court anyway as well at the moment those are state until the court seems direction on this appeal but i mean in answer to judge or costly however this is decided it's not going to be over in bankruptcy court that is you know but  and the parties with the burden of proof mr tatham mr young or the parties to appeal to the facts saying that the bankruptcy court didn't do their job but in fact they didn't present evidence that they were happy with the batf says we need to go back to look at what their total state law mr young said his for seventy six thousand nine hundred seventy three dollars we didn't dispute those figures instead we argued that they were not allowable as a matter of law he presented arguments as to why mr young's medical claims were part of the terminations damages determine whether mr young's consulting agreement was part of his terminations damages or the separate but the only damage element under mr jones consulting agreement was for ten years of future medical benefits finding was made by the bankruptcy court on that fact he is the only evidence mr young's declaration was that because evidence was that the benefits were still being provided we argued that there was a reasonable law to disallow that but if it's contingent there is no breach and deal with the one year compensation but against her chapter mr young had the burden of proof and they didn't come forward with those numbers in their original brief so the bath asked for supplemental briefing and mr tatham mr young stud they would come back with evidence do their job they didn't satisfy the burden of proof despite two chances to do so before the bankruptcy court the fourth factor is whether delaying review would cause either party irreparable harm contour states are liquidating state this is the last major piece of litigation if we have to go back and start over really big eight facts give them a third chance to satisfy their burden and start over with this is really a simple issue of law will irreparably prejudice the congress state to say if you have to go back you are there in the bankruptcy court yes but because we believe that those factual issues are raised by the back do not need to be determined yet again they were determined properly in the first case where we have now is the simple issue of law and if this court  holds how the bankruptcy court applied five to the seven we're done with it if you if we have to go back and apply it again with a new interpretation the one either the one from the bappa pinion or the one from the past my own opinion will be starting over been dealt with and hearing this issue purely on a legal matter obviates the need to go back and follow the path order to once again inquire into all of these issues also resolution of this of would not just in the bankruptcy court if necessary that we look at the name of the document and what the parties intended to be a security deposit it says a very unique creation other letters of credit are simply third party obligations treated like guarantees in bankruptcy by the time it got around to the mine networks case said it's a different procedure that applies you don't look at what is called you look at what is its effect on property of the state and that's why in my networks the court is saying well we actually that you apply the payments to the cap because when it's secured those payments are working their way around it coming right out of the state property put the right standard into the mine case decided kong or based on the wrong standard we know whether this letter escrow account or a letter of credit if they'd been paid out of an escrow account he wouldn't be here it would have been so obvious that they were getting property of the state directly from the estate questionnaires to setting it up with a letter of credit means that they can get  and then to the extent of security wouldn't provide it they would have an unsecured claim for any remainder at least that is how i understand the law this leads me to my third reason why i think this court should accept jurisdiction and that is the collateral order to offer and the baptists come up with a new definition stating that the bank's independence contractual reimbursement right is actually just a secondary obligation of a co op with gore and it can be subordinated and can be segregated and disallowed in bankruptcy in the state to the extent that it would exceed the five to be seven cap i think it's going to be a big surprise to banks that issue letters of credit if they find that their contractual reimbursement rights against security are going to be subject to the five to be seven section that applies to a claim your room i don't have that in my brief draw i don't see any citations to the relevant cases and for any discussion of yes i realize that that was not something that i had thought about at the time i do that now if the court feels improper that i go into the collateral order dr i understand your honor i haven't called the collateral order doctrine in my briefs but i have pointed out that the pap was wrong in full cases when it came down with this article five argument that is breached in our weather returned to the bankruptcy court there was also hearing in the adversary proceedings which are seeking to recover other proceeds of the letter of credit from the officers there was a motion for an injunction to draw on that letter of credit or you can draw on the letter of credit as long as you don't get control of the funds the funds go immediately into an escrow account with your counsel and it's the latter that is in fact has been done in the janitor in the cleaning person in the parking lot attendant the cook whoever else will compete over whatever crumbs are left in addition to the million dollars he's already got and that's the way this would work the way  resist i presume hammer and tongs i certainly would resist any thought of it worked out the way you wanted to work out this guy gets his golden parachute of a million dollars in whatever and then still gets to file his claim along with all the raised by the objection or the response the first initial hearing is a non evidentiary hearing that's intended to be to schedule how an evidentiary matter is to go forward  significance of that i would say that there is no significance to that your honor there is no significance that we have to really address the mine decision and why the mine decision really does not impact this decision at all security deposit is property of the state it may be in the possession of the landlord but it is not the landlord's property until there is in effect a foreclosure when the security deposit is applied and becomes is provided to the landlord as security we will treat it if it is given to us security we will treat it just as a security process the mine court is saying the older the rationale which is the second circuit case has developed a doctrine should apply to any acquittal and to the security deposit the difference between mind and current or is that the later credits the bankruptcy appellate bankruptcy appellate panel said the security deposit doctrine doesn't even apply because we don't have anything in front of us that functions like a security or a security allowances as the as the land work with big because in mine they've effectively collapsed what you've done is that the mine court and what is truly controversial about the decision it has collapsed the certainly this circuit has not decided that issue but yes that if that rationale is in fact accepted the next question asked of the well what is the consequence dealing with the letter of credit as a security there was no reason to treat the reimburse an obligation as if it were a payment to mr young or to mr taft and in fact the our should determine whether mr taft and mr young's claims should be rejected or not and so they are the panel said that the rights of the issuer are for another day in another case we're going to determine this case based on what the rights of mr taft and mr young should and that's what it did so the ultimate result in mine can be correct because pellets is incorrect in saying that mine never mentioned security in fact mine decision was quite clear and me and the documentation was quite clear that the letter of credit of credit it would take and hold as a security deposit so really in one sense mine did not have to go through the whole collapsing of the independence princip and say we are going to treat these let the insurers reimbursement as if it were a payment directly to the landlord which it did in its reasoning it could have just said the landlord contractually agreed relief against mr young and mr taft and they're based on an unjust enrichment theory in order to prove that unjust enrichment theory the plaintiff is going to have to prove all the same facts that it is saying we don't have to be concerned with and you don't have to go back and find facts with in this proceeding in order to prove up the unjust enrichment theory they're going to have to be able to enrich to the extent that received more than their cats claimed so you're going to have to go through the whole analysis that the bass has said thank the court has to go back into with respect to the of the claims you have to determine what the amount of the claim was at the time of the final you titian you have to determine what portion of that claim is in fact damages for ridge for terminations of the employment agreement and there is an issue with respect so that particularly with respect to mr young you can only tap that portion of the claim that is for damages determination of an employment contract you can't half the other part so before you get to the issue of applying the cap and staying with the cap you have to determine what portion of the claim is subject to the cap and it's not  that is a fact that was never found by the trial by the bankruptcy court and in fact when you talk about what facts were found by the thank you court well there really none of them that i can whether those proceeds are to be counted fourth in determining the claim as a commencement case or are they to be accounted for and credited recants the cap amount after we go through the whole calculation now i don't think there's any dispute that the ordinary rule here is that consideration received by a creditor prior to the commencement of the case is accounted for in determining the creditors letter of credit proceeds in the same fashion well the problem is that in terms of trying to apply that rule to this case is that there is no security there's no no there's  by letters of credit stated on their face stand by letters of credit subject to international rules states of the bottom subject international rules on standby lawyers credit we've tied to the stonebridge case in our briefs which talks about the difference between standby letters of credit an ordinary commercial letters of credit standby letters of credit operate more like a guarantee to you know in order to get payment you have to make the request to the bank that acts as if this is a statement that the original payment was a default spirited debate at the second hearing between the court and the costello on whether or not these were security tab knowing starting at page seventy two and the court just agreed with mr costello it made a finding the evidence was put in by one party or the other or both on what the total claim is and what the annual compensation is only one party put evidence before the court other party chose not to dispute it we chose not to dispute the amounts no proof of claim but only to argue to issues of law they chose not to put in evidence on an annual compensation even though they have the burden of proof the bankruptcy court was properly able to proceed to a ruling based upon undisputed facts in bankruptcy court never ruled on or didn't have a motion before it so that's an issue that's still open if i suppose if it's not too late after an order just allowing the claim to to withdraw could be final he could still do have to my expectation that in order disallowing a claim would be considered final and half when it would be too late to move for leave to withdraw the claim there was no order rejecting most knew there was no motion there was no motion so there's no ruling on that issue except that i texas bankruptcy court and now district court on appeal to the circuit in the stonebridge case it's in agreement with the third circuit in p p i on most issues the congo of cases the one that stands out on its own saying that if you want to get around the in the  bankruptcy law just make sure your terminations damages are secured by a letter of credit because event even post petition you'll be able to siphon assets of the estate out of the estate to the detriment of other creditors for the full amount of your multi year claim that goes same way to the same types of payments the contour opinion allows executives or any employer you know has the power to get their terminations damages secured by a letter of credit to collect those damages multi year damages in full and these to the detriment of