good afternoon everyone ok we're here on blix this versus yellowstone development and mr james debtor this court's law is clear that the bankruptcy court may not release on liabilities by non debtor is that what this is it your position that that's what this release connection with it relating to or arising out of the chapter eleven cases so ordered the formulation negotiation implementation confirmation or consummation of this plan the disclosure statement or any contract instrument or lease or other agreement or document entered into during the chapter eleven cases or otherwise created in connection with this plan the language of it does seem to indicate a broad release of cla into a recourse loan through in part is conduct in for to supporting in this plan of reorganization to extricate itself from the liability putting all of the liability over to mr blix that i did with actions  bankruptcy i'm sorry with actions within the bankruptcy in part in part yes although ultimately the issue in the case was really the private contract between credit suisse at the priest was  minute we have this is my understanding of the legal situation and tell me if i'm right we have three and probably more cases which have brought language of the kind that you're saying but all of wh construing don't seem to have anything to do with this what are what this exculpation clause well i mean i think they do i think it does have to do with the the scope of the power of the bankruptcy code in a court under the code not involving the debtor at all what we're really concerned about is mr blix that who is not a party to the bankruptcy his claims against credit suisse and to the extent that they are barred from by the expropriation kleis and that should be outside of the context of the suisse within the bankruptcy and on the bankruptcy committee and so on it's it means you have nine bankruptcy course getting interesting details of how the bankruptcy was worked out you know because that as the bankruptcy was worked out is the subject of the proceedings that we are in right now mr blix that did proceed in the bankruptcy court to object to the plan and that is the court that is the proper role of this proceeding so there's no collateral challenge here to the plan the plan has been properly challenged in the direct course and that's what has brought us here to this point today but the concern that we have contract resulting from the conduct of credit suisse in combination with mr black's asked ex wife and had to do with it breaching the terms the terms were to in the allegation was and it didn't it never got off the ground read was not very well developed but in the in the complaint the way it was set forth was their conduct in part in interest into this plan and settling with  committee well i mean that might be a different issue with respect to the creditors committee which isn't before as here but as far as c be they could have their own settlement i mean they can work out a settlement on their own with anyone including mr blix that but they don't need to be exculpated with risp by the bankruptcy court as part of the bankruptcy plan and rejected but that's a little bit different claim then the breach of its own contract to the extent that that i thought that's what part of the claim when the colorado case as to how they breached the contract was in that respect i don't think it's necessary to h directly so right so this is what it says except as provided in subsection eighty three of this section discharge of a debt of the debtor does not affect the liability of any other entity or the property of any other entity for such self evident either and i gather other circuits don't buy it because of this so he says what happens by operation of law doesn't say what you could agree to but assuming that you can even agree to it what does it have to do with just this  any actor omission in connection with so i mean it actually this exculpation clause goes goes beyond not only as to rd parties but as to what can be released what could be even be discharged so i mean at least the way it's written and twenty four c says x and one ought to read the cases under their facts and the statute i mean if we can't make up something that's not in this fashion well but i think it it does go to what the role of the bankruptcy court is and i may have may be too narrow in saying that the only stashed a provision because i think what the court reasoned in low inches and the other cases is you do have to look at what the role of the bankruptcy court be covered or not a part i mean the rd party put it but it's a little different because in that case you are dealing with and even maybe getting back to just crisis question about the can creditors committee you are at least dealing with parties to the of liquidating trust right the attorney who right right so you and you took the same position with regard to him despite the fact that he did have an official position in the bankruptcy right and that that  would be a problem to the extent right to the extent that he was exploited now he that ultimately that case was resolved favorably but but that would be but that is obviously different situation than than what we face here i'll give you it please the court chris carey elo for credit suisse i'd like to start back up question and background question given the colorado case and the fact and so for what's left to be fighting over absolutely nothing claim splitting in so far as there are other claims i did want to add some clarifications about what exactly happened in colorado so the breach of contract claim was brought in colorado it was judge  provision in the original loan the conduct at issue here is conduct that occurred during the bankruptcy so what mr blix said alleged in his complaint in colorado is that there really arguably two theories one is credit suisse control the liquidating trust and caused it to take certain actions the bankruptcy court rejected that argument that's now final and the court in colorado held on summary judgment that though as to other claims in the context of a covenant of the breach of the covenant good faith and fair dealing claim held that that is collateral estoppel so that's been rejected twice now that that basis for the air the other basis for the breach of contract argument was this notion that merely by joining the showing of damage causation damage causation just the same is an element of a breach of contract claim so even if it were true that that somehow the exculpation clause could be modified to permit that claim to proceed somehow it would just be swept away by the fact that the underlying basis for the claim was already rejected in the context of a different claim in colorado so tell me something i think and then just your car and i don't ask in streams and spend it well here what claims of credit suisse were more at stake he kept asking i think so i know exactly sure your honor i think it's been confusing this is these are mr blix that has pursued a dozen claims in three different forty three different forums and the bankruptcy court so i think it's understandable that different courts have been confused about exactly what's being pursued at particular times and here when he was talking about the so you are i think the i think the district court noted specifically this is an e r twenty six dollars this is a hearing where this record brought everybody into court and said there's a lack of precision on what's going on there was no lack of precision it was quite a bit more clear clause it's a modest use and a justified use on the facts of this case of the bankruptcy courts power under section one hundred and five dollars a to issue any orders that are necessary or appropriate to effectuate the provisions of the code and i think the critical thing to appreciate here is what this clause is and what it isn't the only purpose of this clause the only purpose is to assure the key players in this bankruptcy proceeding that having having an gaged with each other and decided this is the best course out of this chapter eleven proceeding the day after confirmation of that plan they aren't going to be sued by by litigants attempting to collaterally attack what they in good faith were attempting to do in effect all this provision does is channel challenges to the conduct of the bankruptcy itself through the bankruptcy and in the context of objections to the plan  to challenge the conduct that underlies that claim absolutely in the adversary proceeding fourteen and within this proceeding challenge to credit suisse is alleged control of the liquidating trust again rejected by the bankruptcy court raised this nonrecurring vision repeatedly and in a p fourteen the bankruptcy court actually attempted to fashion some relief on that basis that came up to this court and this court had a different view of that it went back down but my point is this is been litigated it has been litigated in the bankruptcy court and it's now final in so far as there are objections to the conduct of the plan the purpose of the exculpation clause it's a limited immunity it's not meant to take away any party's rights or ability to challenge something that happened in the bankruptcy proceeding mr blix it has challenged everything he's challenged it in the context of the bankruptcy proceeding and the point of this clause is simply to reach some finality to  code the principles that there's no collateral attack of this conduct available elsewhere so under those circumstances is the clause necessary it is necessary it's necessary largely for pragmatic reasons i think it does include other legal principles it's to be candid the belt and suspenders which as a logical matter is less necessary but as as a pragmatic matter hugely necessary i think but it's it standards had already apply that's because that one was limited to essentially officials of the bankruptcy process this one isn't so i don't know it doesn't seem to me that it is simply  coding existing protections except to the end it doesn't in terms apply to take out challenges was in the bankruptcy proceeding right of the us case in the rd circuit that recognizes that the scope of that particular provision as it relates to the unsecured creditors committee is supported by this limited immunity all i think  and certainly one that needs to be supported by findings but we have that here we have extensive fine then the problem is that our language in arkansas is pretty broad so what are we going to i think your honor was exactly right section five  four east simply does not apply to this when we're talking about discharge we're talking about the discharge of the debts of the debtor we're talking about a very specific thing in bankruptcy a very specific concept under five  four which provides that the discharge releases one party releases the debtor but doesn't release other parties from those debts so we're fundamentally talking about the subject matter of the bankruptcy the debts that are to be adjusted we're talking about  pation clause where a world away it's a totally different species of clause it's temporally limited to the bankruptcy itself that is post petition and pretty effective date it's limited in subject matter it applies not to the subject matter of the bankruptcy that is the debts but the conduct of the bankruptcy so it goes to the bankruptcy courts ability to manage the bankruptcy proceedings themselves and it is not an absolute release in the same way the releases the rd party discharges in low interest prohibited by that provision because it isn't the sort of rd party discharge that's being dealt with in those cases the question is just whether it's justified on the particular record that's before the bankruptcy court and again this ex unfortunately i think my answer is it depends i think it's not too broad as to credit suisse certainly the if the court were to try to fashion some remedy i think i would have to know exactly how not because this court ordered mr blix at the show cause why the case was not moot any more mr blix that initially failed to respond and so that was largely the basis and i gather you are not now arguing then that we should just get rid of the case because he didn't answer that because as far as i tell frankly our order he did respond with respect to this case and so i don't think he was in breach of the order and that's presumably why the clerk's office did not automatically elsewhere and where i would like to spend the remainder of my time is on the facts of this case and why this is not too broad because with the district court found was that confirmation was extraordinarily difficult this case debtor in possession funding was going to run out in a matter of the debt or was going to go out of business people were going to lose their jobs this club was going to be stripped for parts and the bankruptcy court recognized credit suisse is the largest creditor here there needs to be a settlement that is the only path forward here so it fat and all of this is that if you're thirty five to fifty and it recognized that credit suisse was the largest creditor it recognized that credit cif suisse was going to have to make extraordinar economic concessions in order for this plan to go so that's the st thing it recognized the nd thing it recognize in addition to credit suisse is immense contributions this was a very unusually litigious case the parties were jockeyed jockeying there was saber rattling including for mr blix if and so what the bankruptcy court recognizes if this is going to happen if this chapter eleven plan is going to be it is going to be confirmed this exclude patient clause is going to be essential so that it can promise the parties who have made these contributions who have forged this path forward that they're not going to be undermined the day after confirmation see my time is up if you can finish your point spectrally request that the court affirm the case was dismissed based on the exculpation class in that park so to the extent of the exculpation classes invalidated i think mr black's house would have a right to revisit that either in colorado or are also still time well but that would be a change in circumstance to excise it so that put it back here that puts it back before this court and that's the concern we have that case that has been decided that should be revisited and to the extent there are other claims that  seth could go back to the district of colorado i think and try to reopen that claim based on the change in circumstances going on not council there but i would think he would have an argument for certainly not kno and for calling a statue limitations given the changing circumstances to the extent that there that this clause is so broad the problem too is there may there could be other claims out there that have not even been litigated between these parties that could be implicated by this clause and much in the way that that which are contracted out st of all i mean it's so many years later that it's very hard to believe that there's anything that could be litigated that isn't quite as limitations preclude well right new facts continue to be developed and with discovery rule and other tolling provisions there could be claims out there that could be litigated and if this claim is this clause were really so limited as they are arguing i mean it's ironic position that it seems that p are all switched and they're trying to argue that it's a very limited application and we're arguing it is broader by arguing that i'm not conceding that it should be interpreted to be so broadly and i don't think it can be interpreted to be that way but to the extent the court do interpret it that way that's what poses the problem what do you concerned about because we can rightly right now opinion telling and saying what we think this means because it seems to me it is very limited at clear and deals with matters that arose during the bankruptcy and during that time period as well so what is the concern well i mean the concern is is really existence and the best remedy is simply to excise it as credit suisse is arguing what it really does is just duplicate the it munity is if their positions krech it's really not necessary it's only because if it's only duplicating what is already protected by the limited immunity within the bankruptcy case then it's not necessary and the best way to deal much unity as channeling that is there was an opportunity to argue about this before the confirmation of the plan right the immunity issue really regards but what i think they're seeking what they claim this is limited to is this temporal only the amounts that are happening within the bankruptcy to the extent that that is what is covered and it would would be otherwise precluded by operation of law anyway then this escalation cause just isn't necessary so all we're trying to do is excise it to the extent that it appears to or could be interpreted to apply to claims that are not otherwise immune or otherwise covered by the bankruptcy provisions all right thank you mr chief that concludes the argument for this case and will submit it at this time tha