please speak directly to the question equitable mootness and in particular if you would speak to the capacity for the kind of relief that you've when we're below your honor not and we were in the bankruptcy court we did the only thing that we could procedurally do was which was to object to confirmation of the plan and asked the court not to confirm it when we went when we lost that fight we filed for a stay and the district court denied the stay and we got into the district court then the equitable movement's argument was raised and i expect that mister sonic is going to tell you that because the plan's been confirmed and because securities were issued and because money has been paid out we should not issue any more securities and we shouldn't just start to scorch any of that value but under answer your question is yes and here is why number one you aren't picking the each of the claimants who are in the class when they decided not to have jacked waived their rights and that matters you know in the same crude case this court decided that it was going to let one litigation plaintiff go forward and assert their adversary proceeding while all others could not and the reason that the court was comfortable doing that was because everyone who did not signed onto a settlement that's ultimately what happened here these and twenty three is an issue when you actually have the plan in front of you and your side and whether or not to approve this plan unquestionably afforded the same relief to everyone who was in our class but now we're in court asking for asking this tribunal to review what happened below and the other side is saying well you've gone too far at this point you can't do anything about that i mean you know this obviously there's been a discussion within the rd circuit only when it absolutely has to and in this instance you have the ability to be able to afford us relief and one thousand one hundred and twenty three dollars applies to the judge's decision to approve the plan it doesn't restrict this court in fashioning interim and seventy one or so individuals in the class and that's right that's right what we asked for at the district court was for the lower court's opinion to be reversed the district court said i can't do that because the plan's gone too far it is only at that point where we start talking about individual leave to mister hargreaves the other side just place a lot of emphasis on the idea that somehow we're trying to get a windfall or we're trying to get something that everybody else wouldn't get we're fine with you sending the case back down to the bankruptcy court and putting the company back into bankruptcy but we've been told again and again that that's impracticable if you accept that that is true then one thousand one hundred and twenty three doesn't bind you anymore and you have the ability to fashion interim relief all the unsecured creditors in this case except for the unsecured bond holders got to ride through ok their claims were unimpaired by the bankruptcy if you did that for us you would be treating us the same as them curing the unfair discrimination issue and none of the other members of our class are going to complain about that because they didn't object and they didn't per preserve their kill rights what's the what is the practical effect of what you're asking for mister pierce isn't it going forward to say to individual objectors look you you can not ask for individualized relief at the confirmation stage you can wait until things go through you can wait and tell even you have to admit that there is substantial consummation and then you can come in and say hey this isn't moot give me zero dollars ten cents on the dollar the practical effect of that is it not to and sent people to do precisely what mister hargreaves is doing and create a lot after the fact efforts to separate oneself from a class structure that was i think the idea that holdouts is what we're really talking about here is the holdout problem it's going to become a big deal because your ruling in this case is false because why are we going to invest the money if we don't actually have a m think you're going you're going into your unfair discrimination point number i'm not there i'm talking with you about understood equitable mootness you know stardom about unfair discrimination we can we can have it discussion if you want but of course we've got bankruptcy findings we've got a bankruptcy court saying i find that this is important for a seven to get zero dollars ten cents on the dollar because otherwise they're not going to be able to have a reorganization with the straight creditors and the end insured litigation pieces that so there it's not as if there was you know not an argument to be made on the other side it was made and accepted by the bankruptcy court but leaving that to the side for a minute and focusing just on equitable muteness the holdout problem when you say why would we have an incentive the incentive is for people going forward to say we'll take our shot you know to some up with us there isn't that isn't that does isn't there a real incentive if you get and if you take a look at you know that the fact the reason that we have the ability to bring this appeal is because forty five dollars of our class members decided to decline and only three million dollars that voted within our class all along at two in there it's clearly that's right it's the same claim that we that we've been asserting all along the only reason we're talking about individual relief is because the other side said regardless of the merits of your appeal think what we're trying to get at it then is that you know how can you be asking for it now we're relying on the fact that under some crude and under tribune two decisions from this court the court has been willing to fashion interim relief for a full release isn't available what was the answer in santa cruz we had a litigation claimants and crew he was a member of a class he was allowed to go forward with this claim when everyone else in his class wasn't ok there's the discrepancy we're talking about right but the court decided to let it happen anyway because given that equitable this is only supposed to apply when the havoc is going to be raked then we should find a way to give relief to this individual creditor here we always said that we wanted zero dollars ten cents on the dollar and at this point we're asking for the ability to be paid just like every other insecure creditor got paid one hundred dollars let's say we agree with you and we get pounced equitable as we're looking at cases that the other side asked for are cited in genesis which obviously is hotly disputed case we cite another case called century where they don't allow for it is it possible that gifting is horizontal gifting is happening in cases that absolutely not right what happened in armstrong was judged her brain no was given genesis and said look if things fine see they give didn't genesis and judge rayno said look the facts here aren't the same and even if the facts were the same it's if the rocks were in the lower court on strike decision and when the rd circuit adopted his reasoning he adopted that he adopted the the his approval of the central case i you know it's it's arguably fuzzy which is the reason follow law professors but i would be remiss if i did not note that in genesis in tribune and in the lower court case here everyone followed professor bruce mark else analysis for how to deal with gifting the district court when it decided that it was going to be that gifting was ok because it rebutted on fairness he made the point that well we you know markel didn't deal with gifting we've now heard from professor markel and eat obviously doesn't bind you but he makes a persuasive case equality of recovery among similarly situated creditors has been a bedrock principle of the bankruptcy code for over one hundred years over one hundred years ok all right well we've got your this how we'd given four hundred and fifty thousand bucks to the sky completely scramble to plan that is the answer i understand to mister peterson pitch to be look anybody could come in here and appeal this so you're not we're not doing something that's unfair to anybody else and if ever we couldn't have we because of all of the twenty three for we could not have asperger's individualized release in the bankruptcy court a confirmation we tried to get a state we couldn't get a stay and it's just fundamentally wrong to leave us without a remedy and that's what you're going to hear now we can argue back and forth whether that's a good argument or not but that's the argument is put to us you explain to us why that's wrong how is it right to be in a situation where you're not because of the code ask for individualized relief and then be told when you come up on appeal or you can't do that  i think your honor it's actually in the case because i think when when the court looked at cases syncrude conversion where it looked at the example and said it that situation we're talking about the allowance of claims  and the individual rights of the claim holder that is their individual right relative to proving that they can be participant in the plan and how we participate in the plan what they ultimately recover and the court this court in that instance said that is not released that you can fashion here because what it would be saying to everyone is ok just ignore the code everyone who are not not just the sense because there are four point five million dollars  and they ask for the release that is permissible if they assert the claim they ask for the release it's permissible which includes one hundred percent recovery for themselves and everybody  if it moves past that and the the others are prepared to accept the the confirmation of the plan without objection why isn't that simply a waiver issue it's the same  claims being pursued at the end and and and he's taken the steps that we said ought to be taken in terms of seeking a stay and asking promptly so why that point should we assume that there is no possible her a waiver argument that could be interpreted even looking looking retroactively as agreement to accept the plan by not objecting why why shouldn't we look to at the point where you raised an equitable to this defense just to consider the fashioning of some relief so that bankruptcy law can develop and where there are claims that you may or may not be serious at least to get to communicate a governor the i mean the simple answer your honor to me is that a waiver is not the same thing as an agreement and and that i think is  that the fact that he couldn't argue because in the bankruptcy court for individualized relief doesn't prevent him from being able to ask for individualized relief on appeal because one thousand one hundred and twenty three of four only would bind him at the confirmation stage he's free to come in mister hargreaves free to come in after the fact and ask for individualized really my understanding you correctly to say no the whole point of eleven t four is to not allow for individualized ruling dream i missed it explain to me the turning i'm trying to get both sides here and here mister pierce will correct me if i've misunderstood what he's saying but i want make sure i understand what you're saying are you saying that done and i think just to come back to the right again the predicate for the to the question why as he couldn't raise it alone the reason he couldn't raise the below was not a procedural issue it wasn't something some error by the court it's because the bankruptcy court papers he quote says you cannot have individualized treatment and so that's what prohibited him from raising that below it wasn't like i said some something external to what was going on through the bankruptcy court itself so it exactly what i'm trying to get you to speak to i think you're hearing a concern do you should speak to about you know are we doing something systemically that is unfair to the mister hargreaves of the world or is sarah is there a way for people to too who feel that they've been unfairly discriminated against in the in the claims of ministration process to have their positions heard on the merits and i think your honor the answer to that is in this instance that is exactly the case that this is one this is a situation where it can be raised and i think the court this court has its or that recently in the can move forward quickly with confirmation and then raise equitable goodness so that you know at that point even if the only relief that is available that would not unwind the plan involves circular i read it i don't know the turkey or your eye because i think what i guess what i'm saying is the case law talks about this being a class issue so this is the question that was asked is is this a situation where in remedy every harm then there would be no equitable movements in the reason equable existed i know this or where is it is it exists because there is a set there were a set of agreements that were reached underneath and and holders a recovery it wasn't the one that they wanted but it was but the end to give recovery to the trade predators and so to underline this at this point yeah is unwinding that intricate structure we'd be giving him for the fifty thousand dollars there's no there's no didn't there's no structure to allow that and also and that may be in for chip foose the car business situation but that that is it in other situations that that's not the case and that's what members of the same class to be treated as such different extremes one hundred percent versus four and sixpence well they weren't of the same class they were there of the same rank and so i  take that as the question but they were specifically put in different classes because they have different characteristics and the record i think the factual record is clear on that that they are they had distinct characteristics that the  trade was a go forward part of this business i know that mr hargreaves has raised at several different points the existence of litigation claims the record i think on that it is pretty clear  that they although there were litigation there are litigation that's part of that because there was no way to dissect between some true some straight claims that arose from the business and others there were some litigation but none of those were claims that were thought to have the liberty either they were claims where the testimony was that that the new vera had to counter claims that they thought were valuable so it was more of an assets and liabilities or they were planes are covered by insurance so when you take that that the mixing of the case law on the absolute priority rule of cases where we're talking about vertical vertical versus horizontal we think is a is a significant distinction again we think that it's a defense or that the sanction nature the worst unfair requires a comparative analysis in some situations that it can be done in some situations it can't be done so we think that horizontal gifting there's no there there is no prohibition in the think so your honor because again i think that vertical good thing what we're talking about the absolute primary role is a recovery in the end of the day to insiders equity and that's the concern here we're talking about recovery to the creditors and this group of credit for senior creditors provided a recovery for all junior creditors that what they thought was important to the business going forward was to have betrayed and business plans paid in full because they were supporting the business and the record is clear that these were going to be given i mean that that takes the question in terms of distinctions being made for unsound reasons if it's enough to say we've already decided to treat them differently how then could there be policing of appropriate reasons for that differential treatment well again you're i think i think what what's happening is that the arc to this is the circuit in the jersey city medical center case it recognizes its classifications to allow for different treatment is absolutely except the ball and that's what have to get done in order for it plans to get  say that there's no mechanism to pay us that's wrong with the trade client who would who would pay you right i mean the district court made a point of saying look if they want to get paid who who's going to pay him there's the paired the the the debtor reorganized or can't use the bankruptcy as a basis to to contest the claim that's the treatment we're asking for and if you broke down the class wall between us individually and a seven which is where all the other unsecured creditors are that's that's the least you could provide but wait and and and to do that though we would have to say wouldn't lead we'd have to go in and we'd have to nd guess the bankruptcy court and we would have to overturn the bankruptcy courts finding of fact that declassification was necessary for the day to day operation and the successful reorganization of the business and then we would have to say that you you know i'm talking about your client mister hargreaves who is unquestionably out of the money bankruptcy court emphasized in the district court emphasized entitled to literally nothing at all you would then get one hundred percent on your claim because you waited to use the term you did you held out now under those circumstances doesn't that make it manifestly more difficult for a prepackaged plan to go through if a reorganizing debtor says i don't know what i'm going to be finished with at the end of the day i don't know what i should be doing at the end of the day because i don't know that i'm going to actually be done because i could have these people coming forward even though one thousand one hundred and twenty three forces you do not get to do this on an individual ace basis they're going to come in individually and say oh yes i can because that only applies at the confirmation stage look at what the rd circuit did in new vera if they have how do we address that you wouldn't have to because it's a had had a lots and lots of objections which you road if we do what you're saying then it won't be just one guy it'll be a whole bunch of guy saying you see what harvard's got one hundred percent on like every penny and what and where do they think they are right and the way that the debt or the way that future debtors can avoid that problem is by not unfairly discriminating that's what open the door to all else and yeah when you say and i'm fairly discriminating that's sort of it's a rabbit back in the hat because the bankruptcy court said it's not unfair discrimination you are out of the court said and the very st thing that the district court said was this is an unfair because your out of the money they didn't approve this because of trade claims if straight claims was the only argument you know no they didn't yes i can read it operations were able to go forward and they needed these relationships to go forward and that strike you as a finding of fact i believe that that was an application of the law and just feuded facts and weak i mean for the record we agree with some of the points they're just cross making about the fact that record on trade is thin they didn't make a motion saying that there were any creditors they absolutely needed it it actually didn't talk to any creditors it was just the it was a stand your testimony the c r o unsecured creditors including creditors that are out of the money there are lots of rules that protect creditors out of the money that idea that they can discriminate against us as much as they want to just because we're out of the money that's a nonstarter and  metaphorically by asking you to stay on the line of having mister cain if he would 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