court hazard have we bunch of feelings are fairly you're absolutely right we have really seal in this case i'm asking the ceiling was in all the cases which we've had cases even before that we ha majority order so some cases of beginning were not sealed as far as i know and then there's the sealing period and now we're i guess we're going to individually consider what do are there any other cases post that order that if we lifted the to your knowledge nobody you know no one knows this is a failed business nobody cares about knowing ok so i don't want to take your time about our court practice so let's hear your argument on may twenty seventh two thousand way you are going through the history and this is a sad tale as long running business and whatever but it seems to me both in the followings we got today maybe follow them friday i don't know and your human made it now you are running up against the fact that your client previous got not just to what we're talking about now it's very close to the avatar which is three hundred seventy sales now he he bought the company full for fifteen so he's he's completely out plus whatever goodwill trade now the alternative is to buy stock b p says it's ok to do that but in my own personal life i call buying stock  sol stuff but eventually this is where it came out and over the decisions that were made on how much money he was owed that is being contested here when doing that post initial process when did did did he  territories in boston where they were shipping oysters like as fast as they could check and they had a really good business this estimate that they lost seven of something over seven hundred thousand dollars almost eight hundred thousand dollars just in revenue  we have jurisdiction right now because whether it's jurisdictional or whether it's not really jurisdictional that's a different can of worms must in the other people want to talk about that but what my question is if the judge bar b a under the system that you have gets just decide whether he wants to consider an issue at all and we have to decide that he abused his discretion and not considering an issue and that's an interesting thing because we become an ancillary to resettlement process rather than a court must consider all the issues and then we decide if you abuse your discretion of how you consider them but that's another topic the question is how did he abuse his discretion in not considering this just because it's an interesting thing it affects your client and it seems unfair how is that an abuse of the settlement to process and that we have to find  maybe one actually before the court couldn't have said this is not a good case for this because the records kind of messy with the client having all these representations that it was a failed business start up this is not the best case for this point and that would be not abuse of his discretion we don't know why but that's certainly one reason why this wouldn't be the case picked up wouldn't and so why wouldn't that be perfectly fine within his you guys are supposed to get a fix a complete record of what's going on now it's a forty thousand page record but it doesn't tell you anything about this it done tell you that there was that this is like this like the sex in god like used to be best case he could choose to not pick it and that's not an abuse of his discretion because he has all this discretion that you all have given him in your agreement which you might not have been the whether that was a good idea or not is obviously thought it was a  jurisdiction you want to address that whether or whether we have the right to take this case ok we know that this is a this is a discretionary that i mean it's a discretionary mare that we can take a ca to represent you and we all know b p claims work burrage was out a lot of these people just didn't want to fool with it they did what we have thank you very much so i have enough people claims and so i think that that's part of what happened and show you know he eventually got a good lawyer who's going to now feels better and so i think that the court ought to try to entertain decent claims and i think i'd be perfectly but to deal with it on the merits i mean that's that's our system to get to keep people breaks as long as a comply with with even the exception i think and then let me talk about what i think are the three issues in this case the two preliminary points are first i think judge all right your question about sealing this is the first case to sort of talk about doing on sealing on a case by case basis there was another case where want tape moved to unseal it and then there was a recent argument in a case about the meaning of an exit ramp where the court asked after argument was over whether argument should be sealed and on the claimant took the position that they wanted that sealed so the m p three file was sealed so that's kind of the current state of the world on sealing and then what this court did in this case the second preliminary point is that all of the three issues that are going to talk about the two merits issues and the issue and going to your question judge all right you know i think it's precisely right this case is a very bad vehicle to consider the merits issues that r c c is presenting and for that reason it was not an abuse of discretion for judge bar b to deny review ok so with with those preliminaries out of the way let me turn to the three arguments and a half for you the first one is that this was not a continuing business the second argument is what i call my baseball thirteen so i haven't seen from the claimant or or independently seen on the record at what point they shifted to make a different argument but it was some point after february twenty third team where is the creation of thirteen inside the c piero and then the other question that the that the court had asked its grazier to get asked was about the whole question of an asset sale versus a equity sale and as mr turner conceded there was a for whether you go with a fail to start up business claim or a failed business claim a continuing business is november first two thousand and so if you're new entity is created in the middle of two thousand and nine you in the business there's just been a continuing and you kill this disaster in iraq to do what i like i agree with your your honor that that's not a relevant consideration because of the text of the agreement so we're not talking here about the i'll give you the facts so  start you going to answer the question though when all the facts here i don't think that there are any indications of the record one way or another but i'd say for purposes of argument you know we are willing to concede that it was a continuing business are you saying that in the finer points that you've told us in the brief there's no room for a business that is basically changed ownership our we want to i'm going to use quibble for the third time this morning i shouldn't but no matter how you want to challenge the way in which it was done fifty years business maybe that's not quite right somebody takes it over in his particular way want to keep operating expanding there's no room you're saying in the terminology of the settlement agreement to say that is a continuing business and regardless but the label matters because what you're looking for is what is this person standing there is a claim an out and he's out the benefit of what he thought he was barring of a fifty year vision so you saying door closed clear from the language yes i think the answer that question is door close and there's a reason for that if you look at exhibit six in section roman one in the definitions it defines both the failed business term and the failed start up business term both of them begin by saying that failed business shall be an entity and then it says a failed start a business shall be in it and it isn't defined term in the settlement agreements and there are two separate entities here and there's really no getting around if the parties had wanted to and the better comes with the suite on that and and how you measure that here is by looking at the tax of exhibit six are there some claims that are being paid out where people are buying ongoing business people during  yet and there's a there's an internal policy on this kind of question that the c s s p has but we haven't taken contradictory positions or inconsistent positions and in terms of the twenty eight day letter that  and they were allowed to recover and b p took a country position we haven't taken any country positions you know i'll just say quickly they point to a two bruce b p filed one was a about whether a particular set of stores was excluded by the b p branded fuel exclusion which is a totally extraneous to this case and there are no inconsistent positions in there and then there's another case about a produce selling company in that case there was also another asset sale it was structured that way but the reason why that case fails is because the entity didn't exist the asset sale didn't occur until after the spill it happened and that's another reason just an independent reason to bar the claim and then there's a you know  this business and we want to take it over and they didn't carve out the liabilities then there's not you would be saying that if they could prevail there's i think we'd be looking at the y value this ongoing business they never closed their doors during that time if there were if there were all but let me put it this way your honor if there were all of the facts and circumstances the ordinary successor concept and there were no countervailing facts on the other side that we wouldn't be taking a position you know contrary to a claim like this here though in this particular situation we're dealing with you know a claim of who's running afoul of the language in the settlement agreement just you know  o the brick wall of what that language says and they don't have the explanation about how to get around it so the the any point i made is sort of the main point to make about why it's not a continuing business as is the november second sometime november first two thousand and eight start point but aren't c c repeatedly stated that it was a pursuing a failed start up business that's an hour away three forty seven are only three forty seven three forty nine to fifty one zero eight to sixteen to twenty six to twenty seven in the may want to think that it's really important to look at is are a way one one one because the main difference or there's a difference in the compensation  know earnings before interest etc approach whereas the approach for a failed startup is to look at what our actual equity is and also it swept sweat equity in a far away one one one you're going to find the idea of the that and it's back on the into t point that you're making that we look at the actual structure rather than what the text of the agreement was between the parties that we look at what actually occurred rather than know i would think your honor if there were some external law right that had a different set of purposes whether it's a statute whether it's a regulation whether the agreement takes place and some specific common law backdrop that you may be able to look what you think about like the castleberry doctrine in texas where you look beyond the tech and i'm just trying to figure out if there's any possibility that even if it says into t v they could still real realities of the situation more that it was an ongoing business i don't think so your honor particularly given the choice of law provision in this agreement which is that specify that it's governed by federal maritime law to be interpreted in light of the oil pollution act hundred and there are no doctrines i'm aware of that would say that you can pierce what the text of the settlement contract would say especially settlement contract that's gone through as much process as this one is right with a lot talking about i guess i'm talking about what the agreement was at the time of the sale of the property their agreement not the text of the settlement agreement right now well but i i don't think that those questions are committed first of all in the first instance to the c s s p you know i think those are questions of of external law and you know let me make this point right if you want to pursue your rights under common law or if you thought there were some external source of doctrine that would help you to recover more against p you can opt out of the settlements and r t c didn't opt out of the settlement once you don't opt out of the settlement you're bound by the four corners of the settlements and the text of that settlement says that you know you have to look at these definitions and  collegial tone today in the earlier briefing in that sort of thing about the siding the lawyer the who didn't take the case in the it appeared that there was tone between the sides and perhaps you'd like to comment on that shortly maybe that's a good segue into the jurisdictional issue because you know from our perspective we are frustrated to see that an appeal is filed at the sixty day mark right which is a thirty days out of time and then there's a you know a decision that lets that be done without any explanation of why there was excusable neglect and that also comes right in the face of this court's holding in the in the allied steel case that in a situation in which you're seeking an extension retroactively right like you filing to ask for the extension after the thirty day you know baseline period has already run there's a heightened burden to show that you really have excusable neglect we also point out how that the advisory committee notes for crap for you know say that this is a case to be in the excusable neglect pile because there was some fault  conceded by the side as opposed to other good cause standard and so you know it after a claimant puts in which i think is really quite remarkable write so many hot entire e mail record about all of the various counselor or consultant and they decided to take the case you know for merits reasons saying that they thought the facts were even wrong you know and on and on you know i think that from a total perspective maybe it's hard to like set out to the grave letters of that e mail record and for it not to sound harsh but that's precisely why we don't think there was any basis here for saying that there was excusable neglect and why you know we think that's not saying that you can be snarky just because you're frustrated merits point which is to want to have it explained that's the one about the baseball arbitration process so the way the settlement agreement works is that when you're before the c s s p you basically have to what you know when you're on this appeal panel process you have to submit that you know you that one side makes a proposal p p makes a proposal and the the panel can't decide you know to sort of pick a third approach it has to decide between the two approaches that are put before it and on those you know two approaches the r c c company said that it was entitled to a seven times multiplier and on that basis that was their proposal so now they've conceded that that's not the correct multiplier but you can't undo time like that the way the baseball process works is if you put before the c s s people appeal to annul a faulty you know argument as to why you think you're entitled to confusion based on previous representation or or based on the on the claim of proceeding in procure that you know there was a multiplier that they could use of seven but mr carter concedes that's not true anymore and they only they can only use three not seven and therefore your number is the number there therefore the only number that was legally consistent with the settlement agreement was b p s number and you know that's an independent reason to to affirm the decision  believe the higher burden point based on asking for the the extension on a retroactive basis and you know the factual issue behind that is really that they didn't start mr and didn't start looking for a lawyer until after discretionary review was already denied and he knew as he's conceded at the point he entered the process that he knew he was going to need a lawyer to represent the corporation in court and so you know his basic pitch is once i you know learned that i was going to lose stiction by contract procedures really this is not a normal appeal as of right from the this is an appeal that through a contract mechanism they gave definitions of times and different procedures  so so i don't know that it's jurisdictional in the sense of the court lacks authority it's whether or not it's still a contract she will dispute it's not under the rules really appeal from judge barbie is denials of discretionary review and in you know a couple of cases that were decided i think in july two thousand and fifteen the court said that there was a right to do that because there had not been a you know clear elimination of an appeal right in the contract that's correct but i think that's a very different issue from the issue of once you've held that there is such a right to appeal then you have to take that appeal within the specified time period in the specified time period is to do it within thirty days unless you can get an extension and show that there was excusable neglect and the courts cases of also said that you want to police that boundary because if you don't police that boundary kind of hard to get into a situation where a thirty day jurisdiction think that's a question for the court but we think that we have colorful grounds as to why there was no good explanation here for waiting too long thank you thank you fall and he was such stuck it was unexpected so he scrambled this much as he possibly could what he does is admirable in some respects and to shows what individuals can do in the united states if they if they because i just believe that we should get we should give individuals a break on this can stuff and he got bad advice along the line of his his his rations or the equivalent of bumper cars contractual obligation but what other liabilities but for an asset sale a post transaction entity is a new or different business where the buyer may lose the right to use a corporation's name the asset sale voids existing employee contracts and stock sale or an asset sale that's her quote and it goes on for two pages basically saying the same thing now in the end the briefs that we pointed out in the twentieth letter the