one year honors me please the court josh rosencrantz representing the appellant's your honor as i like to spend my time this morning focusing on two points first this case went to the wrong fact finder this should have been a bankruptcy court right correct your honor the trustee withdrew the reference and it went to the district court at that time with an agreement by the parties that it would be a package but that it would be a jury trial and my fright so far stronger than three months before the jury trial your client advices the district court that you want to withdraw that consent would register or denies right it's not clear to me when you said you wanted to withdraw a very modest remedy or email to the district court either to take sees me arena and to the district court to decide for itself what the verdict should be to decide whether he can do so based upon the evidence it is already heard or whether it needs to hear testimony again alternatively the district court has the option of sending a pat down to the bankruptcy court we would be fine with any one of those and you'll also be fine with the idea fact finder decide this and let me then point to the cases that say that you have the right to withdraw your agreement to have a jury trial in this case so your honor i would not refer to it in terms of right i would refer to it in terms of the authority of the district  the answer is yes the seventh circuit in kramer said that you have the right to withdraw or that right to request to withdraw the no two to withdraw the seventh circuit saw it as a matter of authority the district court did not have our consent for a jury trial because we withdrew our consent it was three months before there was a trial or have any discretion to withdraw your to give your consent your honor there are there are circuit saying that it's a right because having clicked on the seventh circuit it's my second favorite circuit but it doesn't control us what the basis for saying that it's a right rather then a matter for the district  to consider in light of the circumstances in which that withdrawal arises your honor the the answer is the seventh circuit looked at the language of the rule the rule does not say this is rule thirty nine it says with consent if you don't have consent as is the case in so many to have consent to go to the jury rule thirty knowing puts a time limit on it and in that's absolute but let me answer in the second way because no court out there has ever held that you cannot withdraw consent and has ever held that a withdrawal of consent was not to be granted a so in other words there is not a court out there that has that has denied the request and never once tri could play a game where you know could it be granted the day before trial which i think again is dubious could it be granted two weeks before and then we have the situation we have here three months before i mean i'll ask your adversary how how they would have been prejudiced by a grant to that point in time but all of this leads me to think that it's got to be a matter for the district court to decide in light of the circumstances in which granted now your honor that so so let me answer that question directly if it is a matter of discretion three months before trial without any showing of prejudice on the part of the pla would be an abuse of discretion to deny plaintiffs did not articulate any manner in which moving from what was assumed to be a jury trial to a bench trial three months in advance this report and its opinion at least and a short sentence indicated that there was precious this report indicated that in a short sentence the district court had no basis for that conclusion and the only thing plaintiff his argued was sunk costs in the district court but there was costs were sunk and they would have been sunk in the bankruptcy court or in the district court but shifting from a bench trial from a jury trial to a bench trial three months in advance it's a very easy thing to do i mean let me focus on a slightly different issue also having to do with the withdrawal of consent would you show me where in the record you your client withdrew consent to a jury trial in connection with eating and abetting  oh so so the let me just get the page number for the withdrawal but the but plaintive never claimed a jury trial right as to the breach of fiduciary duty down in the district court so there was no need to specify that as a basis on which the consent to a jury trial should be withdrawn even that was the subject of a jury trial no another breed so the breach of fiduciary duty was rolled into the rest of the jury trial but the the  but the plaintiff's claim form of right to a jury trial was a claim relating to the fraudulent conveyance and fraudulent transfer and because he didn't claim a right to a jury trial with respect to the breach of  duty we didn't need to withdraw consent specifically with respect to that but let me explain why the breach of fiduciary duty did not entitle him to a jury trial right the first is that the fiduciary duty claim here is on a finding of fraudulent conveyance and so it rises and falls with the fraudulent conveyance and the fraudulent conveyance is of the item that we've already that  acknowledge is generally the item that when you filed a proof of claim will will be enough to absolve excuse me to negate the right to a jury trial but secondly the very case that plaintiff cites which is pereira this court recognized that there is generally no duty try in the jury trial right with respect to fiduciary breach claims with the exception of situations that up present here and that is the situation where the claim is not you took my money and pocketed it now give it back to me but rather you hurt me in some way for which i'm now demanding compensation and then just to do it again you could consent all charges i mean you were until you tried to withdraw your complaint the case was going forward to a jury claim so that was because you had consented to it well it's because we consented to those claims for which the plaintiffs requested  really unfair to hold us to the narrow confines of our will he withdraw where no one ever said oh wait a minute the withdrawal is limited we would have come back and said of course there were four forty seven of the appendix again there's a letter right so that's november two thousand and fourteen and we had known and we responded by saying we do not consent to a jury trial we didn't specify which claims we were not consenting to but times that i do want to ask you one question before you sit down as i understand your adversary's there they argue at least in part that the trustees withdraw all of the reference to the bankruptcy court was based on the agreement that it would go to the district court for a jury trial and that it's the it's that reliance that they're saying precluded you from then saying to the district court well now that we're here we don't log a jury trial you want to respond to why that should be persuasive well your honor that it sounds like an idjit like a judicial a stoppable point that somehow because we consented once and agreed that there was a right to a jury trial we can't withdraw it just consent to a jury trial it's a consent that results in it coming before the district court rather than staying in the bankruptcy court right your honor the answer is if there's going to be in a stop all theory like that it's got to be based upon some unfair advantage that we garnered from being before the district court in a way that makes it unfair to shift back to a bench trial if i don't know my time is up but i did want to address the compromise verdict time you were serving three minutes  appeals merely determined affirmed the district court's determination that it was not too late to withdraw the consent to a jury trial here just to court properly determined that it judge lawyer points out only covers a limited number of the claims before the court now what they did is after they received daubert and other summary judgment rulings that they didn't like in the bankruptcy court they then said we're going to refuse to allow a jury trial in bankruptcy court they admitted on the record that we were entitled to a jury trial on all of our planes that is it eight to forty one and as a consequence we withdrew the reference in order to pursue a jury trial on all of our point clear and a thirteen eighty that we wanted to jury trial on all of our claims including for you shiri duty not their claim that fight you share a duty is not subject to a jury trial it was only raised in your reply brief their opening preved talked only about fraudulent conveyance rosencrantz points out that you did not make precisely this argument about the beach a fiduciary duty claim i'm sorry did i believe that his point is you didn't you're not making this claim about the breach of the aiding and abetting breach of fiduciary duty claim well that's true we're although they did not specify sixty one we saw it compensatory damages if you look at the judge's instructions to the jury at eight thirty eight ten she said they are seeking compensatory damages that's what we were seeking we were not seeking restitution a particular funds indeed mr rennert never even received any of the funds directly and yet we were seeking compensatory damages for him for aiding and abetting the breach of  moreover there are two other reasons why the court doesn't need to decide whether we have a right to a jury trial under the fraudulent transfer claim which we clearly do under this court's decision in germanie and he did as long as it's not inextricably intertwined with the bankruptcy proceeding and that the claim here is clearly not in extra billion twined it's completely separate from the bankruptcy proceeding and to deny such a belated requests particularly after the whole course of the case is changed by shifting it from bankruptcy court to district court causing a year of delay and considerable expense for the parties as made by the district court i could see where that or give it would be persuasive if what he was what he word cysteine on is a bench trial before the bankruptcy court and all this effort in the district court was wasted he saying no he just wants the district was no advantage to them being in the district court what's your response bankruptcy court had already decided all the issues we were ready to go we did not want the extra delay because of we wanted a jury trial for clients and that's why we brought them to the district court in which was reference for them to then tactically decide ok at the last minute we wanted to scrap this and take away the jury trial right the judge was clearly within in his question in denying the motion i ask you about another topic and that is the definition of insolvency the difference between the federal bankruptcy definition and the new york state law definition how truly were they different so that the jury would proceed on the two different causes of action is it just a saleable aspect of the new york definitions or something else that's what this was a subject considerable dispute during the formation of the jury instructions the defendants wanted to use the federal definition which they said was stricter version of insolvency then the new york definition we wanted the new york definition what the court did is for fraudulent transfer or use the federal definition for fraudulent conveyance used the use the new york definition the jury was told th definitions were separate the jury was invited to go on and decide fraudulent conveyance regardless of what it decided with respect to project and transfer so first of all the argument is triply wai in the sense that they didn't object to the jury instructions in the still don't they didn't object to the jury verdict form in that still don't and they don't claim that they did not raise any sort of inconsistency or agreement before the jury was discharged but as to your specific question new york law fast focuses on present salable found and the reason we thought that was important and argued for that definition which they have not challenged  on peel is because we put in a lot of evidence that the assets in question had no present sale because of the severe environmental problems governing the property in question indeed they weren't able to sell them not the compromise verdict challenge that's correct the inconsistent verdict argument was triply way waved his and said and they can't come back and sneak that in through the back door by dressing it up as an inconsistent compromise and there is no such indication here there isn't any of the usual and dishes such as i say not supported by the facts right i mean it has to be  one that is at odds with the facts of the law that's why the most obvious example that's always cited is that if you sue for liquidated damages the jury finds for you but awards you something else that's that here owners very briefly on jury question judge reggie was right this case was tried as a restitution case this court said in pereira that what you look at is how is the case presented to the jury you how do you argue that when the district court charges compensatory damages but the district court charged compensatory damages in the sense of restitution the two are not what does that mean because that because the theory of the pla pleadings and charge speak in terms of compensatory damages what you're doing is saying to us you know if you look at the compensatory damages if you look at what they were arguing for it was really restitution and nothing else but if the if the case is plead it is compensatory damages i'm not sure why you would look beyond that your honor of years of deciding whether it's going to a jury or not i disagree the complaint was worded very broadly it also had a request for a constructive trust request for a for a jury trial she's been withdrawing the consent for a jury trial we said this is a case that is i mean we cited the five issue jermaine and we also said this is a case that was a restitution case but remember plaintiffs never or gyude the point that we're discussing right now so we didn't have much of a back and forth about the fiduciary breach issue five zero two d is the  consent to a jury trial is looking at a pleading seeking compensatory damages and now has a party that wants to withdraw i would think that party would have to say that this is not really a compensatory the withdrawal of the consent was that this case under jermaine and c b i affects the allowance or disallowance of a claim that was the basis for the withdrawal of our consent because you don't have a jury trial right to it this whole question of whether the damages can be evaluated as compensatory versus unjust enrichment comes in only with respect to the argument well wait a minute but there's a fiduciary breach claim here that would be subject to a jury trial plaintiff never made that argument to the district court so before the district court the argument was germane is clear catchin and langham for a clear if there is a pending claim of proof proof of claim then in this case affects the allowance or disallowance of that proof of claim that is the basis for finding that there is no jury trial so that's what we argue this whole sideshow about damages was an issue that simply wasn't necessary to resolve that question if i may just address judge draw nice question about the compromised verdict and in particular the inconsistency this case exhibited all of the indicia of a compromise it was a close liability question that the jury reported had them hong on the question of insolvency those that are meaningful distinction it is it is not a meaningful distinction your honor and plaintiff conceded it was not a meaningful distinction there is a concession on the record that there is no daylight between the two definitions plaintiff never or gave two separate  reason the plaintiff just described so with respect to insolvency there is no daylight fifty years of law says that there is no daylight plaintiffs this court said that it wasn't so clear what the difference that it was that that they were cede there is a difference and that judge lowey is why the two the two were charged in parallel and that difference relates only to a defense that was available only to the individual defendants it was about how to treat their bonuses do you treat it as a is the giving me a transfer of assets or something for that was exchange for value what you think the difference between consistent and a compromise on its face on the basis of the law and the evidence as presented can be reconciled with the finding made in another aspect of the case not just the verdict cannot be reconciled cause they found them solvent and a federal law you're saying they which the jurors evidently based upon the full trade the the full tally of the circumstances reached a result that is clearly horse trading now it could be clearly horse trading eight of our main brief or yellow brief where you see at the bottom on a footnote five you see the two jury instructions they say the same things in different words and under new york law it's got to be present fair saleable value at the bottom of the federal standard you've got it that you've got assets if sold quote within a reasonable period of time no point to the point that was made was that the federal law is an inch t v is insolvent if the time of transfer the sums of its debts is greater than the fair market value of all its a apologize for misstating what i'm saying is based upon the charge presented to the jury and the definition of how you calculate solvency or insolvency which went on at length the way you calculate it is the same the only difference with respect to insolvency that plaintiff points to is about the use of the word present now the use of the word present means that the sale has to be reasonably within the timeframe that you are of the transaction that's exactly what federal law says within a reasonable period of time and no reasonable juror could have seized upon that difference in words which was never pointed to by the plaintive as a basis for a difference between those two to the district court which never was pointed to to the jury trouble understanding if that is a convincing argument it's an argument for inconsistency they made one finding a new york law and one finding under federal law that you say honor i mean that standards are different the elements are different just so happens i'm not sure i understood what the element is that you would have to show for a compromise verdict it's different from an inconsistent verdict your entire argument seems to me to be they were inconsistent because the same facts had to be found so they found solvency fat only they couldn't find insolvency under state no your honor what we're saying is that the whole soul of the circumstances surrounding support the conclusion that this was a compromise verdict you had a jury that said we are hung on the question of solomon c there was then an allen charge there was then a juror who went into distress followed miraculously e it is not present in the federal charge with good faith really that related to an issue of willfulness party receiving the can finance was not acting in good faith that's not present here was not acting in good faith but so that could only have support a jury rejecting the new york charge and accepting the federal charge but it but i do want to make sure i had to address judge wright yes your honor of course  let me just just and with just one brief point about the compromise verdict and that is to respond to judge reggie's question more directly alternative warn anyway that the evidence was insufficient in this case for a law on liability to correct we or you to the district court know not i had that not to this court what i would argue to this court is at the point at which the jury came back with this verdict it would have been an abuse of discretion to do anything other than say this is a compromised verdict the jury is abandoned its role and we will not let the jury go back and me and figure out how to redo it's compromise a compromise for to cast obviously be inconsistent with the facts and so if you're agreeing that the jury could have  insolvency under both standards you just couldn't find different answers then the for the for you don't have a compromise argument you only happening consistent verdict or not help us out on that well your honor i would say i would refer the court to the six circuits opinion and while which said exactly the opposite the rule forty nine compromise verdict argument was waived but it was brought back again in the very same argument as a fifty nine e argument in the court said in keeping with the opinion from the eleventh circuit rider that these are totally different claims and if we see the totality of an dish of compromise that we get from claims we're trying to figure out how yours is totally different when it's when you're not challenging the ability to find insolvency and you're both right what i'm saying your honor is that there is an inconsistency that is