debtor wants to be able to pursue claims that had belonged to the debtors a state after confirmation of its bankruptcy plan it needs to disclose those claims in the plan to its creditors with the nothing from nestle waters was a creditor in the correction and this is all pending pre bankruptcy bankruptcy so in the bankruptcy they provided this notice that you're objecting to correct and they listed the quite what mountain glacier did in it bankruptcy plan and its disclosure statement was to list the existence of the claim what it did not do was give creditors information to enable the value of the claim to be taken into account they said it was  value i remember correctly that right is that it was an liquidated in of unknown value isn't that true of all kinds of claims that a debtor my reserve i mean surely you know most claims being claims haven't been reduced to judgement right absolutely or are most claims have not been reduced to judgement but in this case certainly in many cases the debtor has a very good idea of what the range of values might do you have a case that says the debtor has to specify some sort of claim but browning is pretty broad what it says is that how the debtor has to give the creditors and nothing from a sion to take the value into account and that's flexible enough to be adapted to the facts and circumstances of different cases in a case like this one where the claim was actually already pending pre partition and they never knew exactly what was going right and so i mean it is a bit odd to hear that particular argument coming from nationally because nestle was a party to the arbitration right what the data are put into the court in this report so for the biggest problem with the doctor's disclosure is that the debtor doing give creditors any of the relevant information and let them assess the value of the they didn't tell them what the factual basis was didn't tell them the amount it had demanded in the arbitration then the debtor turned around and proposed a plan to its creditors and asked its creditors to vote on a fixed ten percent distribution else is complaining i mean this just really feels not very real i have to confess the same i'm missing something you know is there some real injury that that's out there that we should be concerned about other than nestle having claim absolutely there's a real injury to the bankruptcy process there's a real injury to creditors that di couldn't if the creditors wanted more information and there's an office in the back of the court to object not a single creditor objected to this  correct to my knowledge they did not but the fact looting matthew waters correct who had all the information you're asking for because you were the one on the other end of the suit correct your honor but the issue is not whether nastily had the information but whether the debtor met its duty of disclosure to creditors this is something that enables a debtor the where on the statute itself does it say that they have to provide all this information you're now asking for this is not something in the reservation does not defeat the application of raised judicata right this wasn't a blanket reservation like in brown but throughout the case the court explained why that blanket riser and that's reasoning right that's they're telling you why a blanket reservation isn't sufficient correct your honor and a blanket reservation is not sufficient for the same reason that this starters reservation is insufficient it didn't give creditors any information about the value of the claim that the de seeks to pursue but they didn't know the value with the time and someone could have objected you had a general reservation is we were serve all points well we don't know what claims you're reserving at that point whereas here they said we have a counterclaim against nastily waters were reserved correct it did say that yes or however it did not give creditors any information that would allow them to assess that claim that it would allow them to say i don't know i mean it's not in the statute this requirement that you're focused on it's not in the statute it seems to be a fairly penned dangerous reading of the case law and it's an injury free concern it seems  i mean what's your is there any case besides grounding that makes clear that this judicial cost is something that matters in a case where nobody complained about it certainly all of the cases fal focused on the same issue and the reason why that we're on this precise concern that somebody could not assess the monetary value of a claim absolutely and that those are cases that we cited in our papers and not a single one sec right not six circuit court of appeals but within the circuit courts and we were do those frankly you know i mean that they're the reason why browning is good policy matters if this court allows not a concern you should take up with congress if it's good policy and our job is to look at the law congress that and this court did that when it decided browning p levy case in which by now we've found let me ask you this you have any case law that says we're bound by the reasoning and not the holding we're bound by the holding correct we both agree on that yes your honor are we any case law for the proposition that we're bound by the reasoning no your honor but the reasoning is persuasive browning was correctly decided and there's no reason to upset that jurisprudence is particularly in a case like this one where creditors were not given information about the value of a claim even though the debtor knew the value of they knew about the existence of the crime and they didn't object correct we agree on they knew about the existence no one's claiming they didn't know the claim was out there many bankruptcy cases involve a lot of small creditors just because no creditor is alert enough or invested enough in a case doesn't mean that the debtor doesn't have a duty of disclosure that's i mean of the bankruptcy process you're suggesting that they might not have read the thing then it really is harmless error that there wasn't some effort to say how much the claim was worth i'm not suggesting that creditors didn't read it i'm suggesting that just because creditors were not invested enough to make it cost effective to object to the plan to object to this disclosure or to demand more information or perhaps didn't understand the import of this didn't ok do you have any other arguments you want to focus on your time but the two things that i wanted to focus on with the court first that mountain glacier breached its studio of disclosure because it didn't give creditors enough information to let them know what this claim was worth we got that we sell to that breach as a result of that breach the debtor seeking a windfall at the expense of its creditors it ask creditors to vote on a plan where they would get a fixed distribution of ten percent so if there is recovery on this claim that the debtor is pursuing against nestle that doesn't benefit creditors at all that doesn't happen too and you know they can reserve the car sometimes when a debtor reserves a claim the creditors will get a bonus if there's a recovery sometimes it's a pot plan where all of the assets are contributed into a trust for the benefit of creditors that didn't happen here the creditors were asked to vote on a fixed ten percent distribution without having all of the facts that's contrary to browning that's that's correct your honor from nasties perspective the harm was not in whether there was a disclosure in the bankruptcy plan but rather once it ever tried to reinstitute arbitration it's sort of like the court said in k v carlyle which is another case that was following browning where the court said that the non disclosure deprives creditors other than the defendant of an opportunity to evaluate the plan that's the focus did the debtor meet its duty of disclosure to other creditors could vary on a case to case basis in terms of what exact information is required but it absolutely says creditors have to be given enough information to take the value of the claim not the existence of the claim the value of the claim into account and it's not the duty of creditors to go out and investigate and perform due diligence and try to figure out what assets the debtor hands the debtor is the one that sought out the benefits of the bankruptcy process the debtor is the one with the duty of disclosure the debtor is the one that should come forward and tell creditors these are my assets these are what they're worth this is what i'm proposing to pay you because that's the only way the creditors can make an informed decision about whether to vote in favor of the plan whether nestle benefits incidentally guess it's the what what judge walker the bankruptcy judge ruled was interpreted in the plan as to whether we provided sufficient disclosure that's a legal question i don't see what that it's he's not saying they're certainly not making a discretionary call it's looking at what both sides agree with put in and making a legal determination well i guess it to me it's very thin line there in determining what what the plan says and what was disclosed within the plan and then whether it meets the requirements of eleven twenty three eleven twenty three is the provision that says a plan and that's a question a blow well i guess if you assume that the facts under the plan are not in dispute then maybe it's just applying that into the wall they dispute that the plane adequately disclosed what was provided the out of course the plant itself isn't in dispute it's just the application of the language that would be and then secondly they they set something like fifteen of them and a lot of those twenty and they each shooting at the value and other things to preserve your claim you're sophisticated party with sophisticated lawyers i mean why shouldn't we think you'll stating the factual basis for each call to action on ways to preserve a client so frankly that that was what i was relying on and what we did was we there was a retention provision within the plan but this was an important cause of action so we specifically defined it as a cause of action under section two hundred two point zero two of the plant then beyond that we went further and described it in the disclosure statement then we went further and stated in a provision that dealt with the transfer of the claim in eight point zero two that transferred that cause of action to the reorganized of action to reorganize debtor now whether it was also required to establish the value which we said we didn't really know what the value was in there really i guess becomes an issue of what's the purpose of this of this transfer is it to make sure that the defended is not surprised and has an opportunity to object to the continuation of this lawsuit or by the debtor if the debtor were to ignore it and not state anything then perhaps it shouldn't be continue now as to value there's another provision of the bankruptcy code that deals with that and that's adequate information required under disclosure statement and the court has a hearing before the confirmation of a plan that states whether that provides adequate information crittur tours are given twenty eight days notice for that they can object and say you're not providing us enough information as to the value of this  what section of the code are we talking eleven twenty five for the disclose approval disclosure statement and adequate information that's required and so that is the whole process of getting the plan confirmed that they just totally ignored that is that part is that your experience the question of whether something there's enough information to assess the claims value reserve claims values that's something that comes up in those eleven twenty one of the specific elements of when twenty five you provide a liquidation analysis so we're required to provide you know what are the administrative claims what are the unsecured claims and what's the value of the assets to the best of my knowledge that's why we put in there we don't really know but it was necessary for the disclosure to put some kind of you know at least addressed what we believe by you to big that was done in disclosure there was no objection we went through the process it was approved then creditors came vote on the plane with that disclosure similar to a prospectus that's required in the securities market and then there's voting on the plan the four creditors to be able to be your argument and so i understand it is that this should have been eleven twenty five action to the bankruptcy court rather than a browning argument score that's correct and i think browning is correct in that in the in which the court said and of course they ultimately look bad and say well we went through they went through the patient rights as it was in branding is not sufficient so you have to clearly we have to do more but there was nothing as they appellate says they said that none of the other information that branding requires was provided well there is no other information that browning requires only then the holding is just the reservation is not sufficient and particularly if you're if all you're trying to argue is that it's being transferred it was a day or arbitration was stayed it wasn't just remind me if you can it wasn't sufficient in that case because creditors wouldn't have known that the debtor was reserving that claim at all is that fair i mean they just weren't aware that i think you know the words they weren't aware that it was a reserve claim as opposed to they knew it was reserve but they had no idea how to value it is that a correct understanding that that's correct and in that particular case of course it was just in that general retention language that said all other causes of actions are retained and there was never any identification as to what it's been now you do with the language about that it's it wasn't sufficient because it did not enable the value of an w s claims to be taken and you can't in the disposition of the debtors stay that's the language your opponent allies that's right and i don't well first of all i don't believe that was in the context of what we're talking about here because again eleven twenty three just authorizes the transfer of the climb and certainly they need to be aware that their claim has been transferred but the information that is necessary for all the other creditors is is is not under eleven twenty three it's under twenty five and that's the disclosure statement in the information that is being provided to be a pretty strange system the first time this sort of objection would be raised would be after you know after everything's over and we're hearing the sec circuit in the case you know it was closed in the bankruptcy i cain't explain we were stunned that they never filed the proof of klein we were stunned that they just waited to the very end and then raise this objection and that's why we brought the declaratory action for the court to make a determination to confirm that in fact they are a traitor would know that in fact this plan our claim has been resolved now if for some reason the court were to conclude that we didn't properly reserve climb i would point out that there's been no real finding as to whether residue to kind of principles have we understand that what just out of curiosity what happens if we were to rule in your opponent's favor they could still proceed against you but you wouldn't have a counterpoint or did they did their rights extinguish in the that is what we're doing we we brought it to the attention of the arbitrator that we wanted to proceed they said no wait a minute you didn't properly transfer it so that's when we brought the declare tory action to have this matter resolved still i under now that the browning court did not require anything more than just stating that it was a blanket reservation was not sufficient and that our plan otherwise did do sufficient identification of the matter to to allow it to go forward what happens if this gets a approved on your position there is there's actually an arbitration going on this week question yes and that is our claim against nestle is being pursued and they'd arbitrator went ahead and said i'm going to allow this to go forward notwithstanding this on here's a couple of points that i'd like to address from places presentation first the case that council cited in the middle district of tennessee in re penn holdings it's a bankruptcy level case and it's been criticized by the district court in the middle of the middle district for tennessee specifically for it's failure to follow browning well i mean in the limited time we have why isn't mr norton right that this is an eleven twenty five objection issue for the bankruptcy court which could have and should have been dealt with than rather than a browning argument to present to us now after the bankruptcy case is over his browning doesn't address section eleven twenty five but why doesn't ok let's set browning aside why doesn't the eleven twenty five precisely address the concern you raise because if this claim actually were taken out of the picture if this claim were not something that the debtor was trying to preserve for its own benefit instead of for the benefit of creditors if it were simply put to the side the re sufficient information presumably to pass muster under eleven twenty five eleven twenty three in browning only come into play when the debtor after the fact decides to try to pursue a claim that it turns out was not actually disclosed adequately in the plan itself that it would actually would happen and round it was disclosed in the question is whether it was adequate and there is a judge a couple of his point there is a mechanism in the bankruptcy by which you can get more information about any individual that creditors had not even had not realized it was reserved at all can agree on that there they certainly did not know about the specific claim right so i think that's a yes and that means the value of that claim they could not take the value of that claim and that is the language here i think with the court saying they couldn't take the value of that claim into account because they did not know the claim had been reserve at all which is not e they knew in this case a whole lot more than they knew and browning right i mean they knew there's an arbitration over in chicago where it is and you know i mean they knew a lot way more than in this case about the existence is that fair about the existence they knew about the existence of the claim but that's not what browning says it's well i know i well you know world we'll see what brooks said ok thank you very much f