injury to the debtor emerald consume no in the amount of the full value of emeralds gaming license in other words the trustee says that kevin plans non disclosures of two pieces of information standing alone nothing in the ickes order revoking emeralds license or any well anywhere else in the record supports the notion that kevin plans actions or the actions of the other individual defendants in this case caused the revocation of  p order concludes that on the tele the of the evidence before it and considering that emerald had no revenues against which monetary fines could be assessed based on that revocation was appropriate the actually be order doesn't say no where says that kevin plan was the cause in fact were the legal cause of its decision the i can be said that it was revoking the license based on the seriousness of emeralds is reliance on connections to organized crime the district court found that the trustee could not prove that emeralds had secretly entered into an agreement with the davis companies and rosemont mayor john stevens the district court found that emerald did not conceal its construction activities in rosemont when it was building the casino there and most fundamentally the district court found that kevin flynn and the other individual defendants were not acting was largely unfounded so not only did the i g p not say that kevin's friend kevin flynn's conduct had caused it to revoke the license but also the majority of what it did say caused it to re license couldn't be proved in this case the actions that kevin flynn actually took as found by the district court here did not cause as a legal or factual matter  officers of emerald head entered into a secret agreement with davis companies with doofus walk with me or stevens to carve up and rolled after they won approval of moving the casino to rose much that was a major basis for the i g based decision when it came time to decide this case to decide the trustees contract claim against kevin flynn the trustee you had to prove that kevin flynn actually engaged in that conduct which the so the district court which had to assess these things for itself i mean the trial needed to be held in this case because the i g p proceeding was not of course a contract claim it was complied with regulations the trustees theory of how the i g p order can be read to support causation how the i g b order supposedly can be read to support this claim that each individual defendant independently caused the revocation she focuses on language in the i g b order that each of the five counts alone supports revocation the i g b order relies on five counts finding each which finds that emerald violated five different i g b rules and at the end of each of those counts the i g b says this count alone supports revocation that language cannot bear the weight that the trustee puts on it and there are several reasons why at the first highest level what the what the words on the page say is that each count alone supports revocation now i read those words to mean that each count you is not saying that if this were the only count in front of us we still would revoke the license it saying this county alone would be sufficient to prime minister revoke the license the trustee disagrees with me on that but that's just one problem with your argument so i'm not sure that your interpretation that language i mean hold up by impelled i mean caused not competent i mean the i g b didn't say that this count alone is driving our decision to revoke the license i agree with you one hundred percent and since really matter because the district court numerous contract breaches by your client and others oh it definitely matters the trustee believes that that language alone support revocation is enough to strip out the individual actions that the defendants engaged in as found by the district court now if you look at the counts of the complaint and i would point you to pages twenty seven and twenty eight of our brief which lists them all conduct that emerald engaged in and the i d p s understanding of that conduct or its perception of that conduct caused it to say you know he's eleven waves and rolled violated rule one ten he will one tent the trustee believes that because the i g b said this count this count five a loans ports revocation any violations by any individual a rule one ten is enough to say that each individual caused the revocation of the license but let me point this out with the example of kevin larson kevin larson was the president of embroiled the district court found that he said he had no role in the district court in the i g p will disagree but that is a factual matter so looking at count five there are eleven categories of conduct one of those categories is not not supports revocation if she is right that that can't be that language means that every single individual violating act of every single defendant independently cause revocation of the license and we have to understand that language to me that each of the eleven separate categories under rule one ten caused violations because revocation of license here's why that is the order is set up with five alone supports revocation language and use that to establish causation against an individual defendant the trustee needs to show that what the i g b meant was that every single category was  clearly does not say that but there's another problem with the trustees argument this is an action against individual defendants the count's of the i g b order discussed actions by emeralds so that act about not disclosing and concealing kevin plans relationship with everyone before two nine hundred ninety nine according to the district court that was an action engaged in by four separate defendants so you accept that the trustees theory that every single defendant's breach independently caused revocation of the license you would need to find that the district court would have needed to find that the i g p thought one statement by and defendants of emeralds and the other was a contract claim based on their agreement in this shareholders agreement to comply with the rules of the an order to the i g p this agreement just to make sure you're aware was the same shareholders agreement that all shareholders signed not just the defendants in this case not just the officers and directors so if the trustees  reading of this contract is right every shareable who signed this accepted responsibility for the full value license of the i'm sorry emirates license in the event that the engaged in a stunning unprecedented exercise of discretion and in this case it in the trustees theory is that every shareholder agreed to guarantee the full value of the peterson also did have to respond to questions from the i g b he was held not liable that's correct other shareholders had to submit personal disclosure forms to actually be so other shareholders also have any if somebody an individual can take actions that would cause revocation so you're making the promise you won't do that out somebody most of want to put the promise guarantee the value of it lessened need to say that in order for there to be for sea ability that license revocation is a consequence or at least a potential consequences of violations it's this contract clause commits the shareholders to fully comply with i g b rules so as not to jeopardize the license you are correct i certainly agree that it is that the revocation is a potential result of any violation right in that sense it meets the foreseeability test easily meets the foreseeability test of proximate cause nation legal costs your honor i respectfully disagree  when there is a you know a connection between event a and event b and in between those two events there is an independent discretionary action this is not paul's craft to go back to to first year torts class ok this is not the remote explosion the caucus is an injury somewhere well down the line and their owners is a foreseeable consequence of a failure to comply with my g p rules is the loss of the license you're see this possibility and promise that they would prevent it from happening i don't know of any other way to read the promise the concepts are the same it's a legal causation requirement and fair enough  in this case just to keep in mind the actions that kevin flynn my client actually took here's what he did he did not disclose his connection with a company his company field street the field trade agreement and he did not disclose his employment his role at emerald before june one thousand nine hundred ninety however he had disclosed that he was involved  potential shareholder much earlier from one thousand nine hundred six so the question is whether those two actions could have caused the i g b to take this dramatic step the district court held they were factors in the i g decision substantial factors and in fact the district court held that they caused one sixth the value of the license to respond to your honor's point about foreseeability i don't believe this is the first seeable result of the actions that kevin flynn took but putting that to one side there's no evidence in the record that the actions that kevin flynn took could be factually causally linked to one sixth the value of the license and actually the trust between us on that that's a measure of damages question that's not a causation question that the measure of damages that were actually caused by the conduct is the whole central question measure of damages is a separate question the one six question that a right that's a separate question about whether it's a it's a joint and several injury or just a several injury at the measure of damages question is completely separate from the causation question ok two responses first of all having the raising the several unjoined several liability this is clearly a several liability case the parties individually promised their  their performance and the district court correctly ruled on that point as to whether the one six damages point is relevant to causation the trustee needed to the substantial factor factual causation question and the legal causation question the district court didn't need to find and it did find that the value of the individual defendants cause one sixth of the harm putting aside the measure of damages i agree with you that you hundred seventy two million dollar question a separate question the district court concluded that it didn't need to find that well that and that may have been wrong as a legal matter but we're not here related getting that ok but now there is no obligation to prove that each defendant proved one six for each each defendant caused one sixth of the damage there is a requirement of substantial factor causation after but for  i understand you not to be contesting but for causation so it's just a substantial factor causation question because we've got multiple actors here and then there's the legal causation question and once those hurdles are gotten over in some measure of damages question w illinois gaming mistakes were made passive voice is that is that what the position is among the defendants your honor my clients position is that he did not have sufficient and mr mcmahon is is mentioned from a liability perspective at only one point in the district court's opinion and the basis for him being subjected to forty five million dollars worth of personal liability is the failure to disclose these agreements to the i g b and if you look at the specific references in the district court opinion his involvement really comes down to his attendance at a single meeting on september thirtieth of one thousand nine hundred nine now there were there were disclosures made of agreements prior to that meeting and i'm speaking about the director of compliances renewal application that disclosed that disclosed agreements and and i'm also speaking about subsequent correspondence between the general counsel and the illinois gaming board  regarding the disclosure of agreements finally your honor in two thousand when the subject agreements are ultimately produced to the board it's the general counsel and the director of compliance who are not only producing them but apologizing for the commission my client is being held liable soley on the basis of that that needs and we believe that the minutes of that meeting which are in the records coupled by the correspondence and contact between the general counsel and the director of compliance with the gaming board both before and after really a step really establish that there's not a sufficient basis  find legal causation or factual causation let's look at this for a moment from the perspective of the i g b t where at least one gets the impression from the district cour getting a straight answer out of emerald casino's mulishly was like pulling teeth your honor i think i have to concede the record reflects frustration and back and forth and  i think some degree of irritation on the part of the game board that those agreements weren't produced i don't deny that what i do argue before you today is that my client wasn't the general counsel he wasn't the director of compliance the meeting for which he's being held personally liable was a meeting where he showed up to talk about financing matters he was there with the banker from jefferies talking about you know how that how the organization was going to make to going to raise money and the minutes reflect that so if he is to be held liable under the provision of the shareholder agreement you're talking about it needs to be based upon his conduct and but for causation can't be present we believe given the long chain of communication after that meeting with the general counsel so you think we should modify the judgment so that the other five are liable for fifty four million each i think on behalf of our client we believe the judgment should be reversed as to him for lack of causation and what  that forty five million dollars worth of the damages well i believe that we have to answer that question i'm sorry we would have to answer that question if you reverse as to my client a firm as to everybody else and leave the same damages in place yes you would thank you to please the court in response the judge hamilton's question as to who was responsible for the loss of the most license it was each of the defendants including peter peterson the illinois gaming board issued a lengthy final order after a very lengthy hearing in which it said in its operative provisions the order in provisions of that order that amaryl which is a corporation acting through its officers directors employees and key persons the defendants were the officers directors agents employees key persons of ambled who committed the misconduct although defendants do not appeal the finding that they breached the emerald and then to childers agreement they spent a substantial amount of time trying to downplay their exam play their misconduct they say for example in their briefs and they said again today kevin flynn committed to minor disclosure violations no one can read the illinois gaming board order and come away with the conclusion that the illinois game board revoked his license because of a minor disclosure violation in fact that order says kevin flynn flat out lie and what did he lie about he lied about his role at emerald judge palmyre said he was not telling the truth that is her language to the i g be in connection with his role at emerald he was lying about what he was doing for the entity that was being regulated in a very strictly regulated industry understandably gaming is is controversial and all the rest of it and it's a very strictly and tightly controlled industry and defendants all knew that and they lied to the i time it varied but during the key time of one thousand nine hundred nine there were five directors and all or all all not we did not suit eugene hato he did we did not sue him he differs from the other directors in that mr peterson was very involved in the rule violations he was asked questions about kevin flynn's role and rolled mr hate how it was not asked any of that he didn't make any of the lies or misrepresentations and we elected not to pursue him we did pursue all of the other directors and so what you have is you have an individual who lied about what he was doing for the regulated and eighty others backed him up and that by the district court found that that violation of rule one ten and one forty was very important because it was important to the i g p to know who was managing casinos that's a key thing they need to know to regulate that industry he also lied about field street this isn't a company he forgot about this is a company he formed literally a week to ten days before he filled out his disclosure form it was a company in which he had entered he placed a contract there in which he had agreed to engage an anti competitive behavior to service the employment front to try to keep native american casinos out of southwest michigan he agreed to receive half a million dollars a year for doing that plus a five million dollar bonus if he succeeded in keeping native americans out for five years most people don't forget an agreement under which they're going to make half a million dollars he didn't put it on his form and has a district court found in her ruling he did not tell the truth to the i g b when they found out about it from the indiana regulators and he was asked by the agent who was asking questions about it when did you form this he said he formed it in two thousand so his disclosure would look timely of it as opposed to when he actually formed it in one thousand nine hundred nine when he didn't put it on his forms so we have se here with respect to mr mcmahon one of the issues that troubled the i g b was the status of construction and the district court we think mistakingly but it doesn't matter because there are many breaches of the contract the district court mistakenly thought that that meant they didn't know something was happening at the site but you have to put it in context that's a temper thirtieth meeting that john mcmahon attended is key and players exhibit sixty five is the minutes of that meeting and at that meeting mr mcmahon is asked what's the status with rosemont what is going on he says we have no agreements with rosemont in point in fact they have a letter of intent that lays out all the terms of the lease that rosemont attorney said agreed to all key terms the rant the time of the lease all the things that would have to happen only thing left to do was to put it in the document with boilerplate they had extended that letter of intent and they had negotiated an agreement so they could go on the site they tell the b we have no lease for that site we don't have that agreement they ask what's happening mr mcmahon says there's some clearing activities take going on out there but it's all under rosemont sixpen implying that rosemont is doing something out there but in point of fact emmel by that point in time has already spent several hundred thousand dollars on construction work they are told turn over all contracts they don't turn over any of these rosemont agreements they don't turn over their agreements with a variety of construction professionals mr mcmahon testified he was the point person on construction he was the c f o of this company he was then told by sergio acosta the administrator be over inclusive give us all your contracts they have a discussion about what they want and he says give us everything and we'll let you know if we don't need it and the i g b asks repeatedly from september through january do you have anything yet the judge lays all of that out in her opinion and they never produce anything and she finds that that's a byelection of rule one forty and it's a serious violation right because it entails active concealment as opposed to just negligent nondisclosure that's right the things that weren't disclosed here were not things in the past that someone for a guy that they are things that were going on right then and there that they were making that decision for whatever reasons they have the judge did not describe the motives to it although one could look at the litigation that was pending against them and come to some conclusions about what their motivations might have been the district court didn't make findings on that but she concluded that they committed serious rule violations and while they talk about what the trustee is asking you to do with regard to causation in fact the district court found that they were the cause in fact and the legal cause of the loss of animals license she made a finding of fact even though she found not the conduct didn't occur but that she wouldn't have found it to be a rule violation and while we disagree that the district court had the authority to do that for example she takes all the letters that were sent about the shareholders that the i g p found not to be in compliance with the disclosure rules she says ma i think they're good enough because the i g p might have been able to figure it out she doesn't say it didn't happen she lays out in great detail she doesn't say that they didn't meet with davis and duchess wa and have all the conversations and that stock didn't somehow and end up in the hands of twelve individuals with connections to mayor stephen she finds all that she just says i'm not certain they actually really made a contract at that time she finds all of the facts and an organized crime issue that counsel raises that truly is a red hearing the illinois gaming board did find that they had associated with individuals connected with organized crime or of a bad character they meaning the emerald defendants that they had agreed on flynn had agreed to sell stock to those individuals some of the those individuals are part of the group of twelve and the only appellate court reversed not because the targeted individuals were potentially connected with organized crime people but because it concluded that proving that violation with confidential f b i memoranda didn't satisfy the test of the statute you had to show what your public reputation was and so that was with withdrawn but what's key about that is that the elena court still affirmed the revocation if as counsel says this is all up organized crime and that was what the  saying and it sort of the only appellate court would have had to remap as they would have had to ask the regulatory body would you still revoke in light of the fact that we don't find this violation was proved and they didn't do that they accepted the illinois gaming board a violation finding each to be serious and so therefore the district court's finding that this was the cause in fact is not clear or it's not illogical or improbable there's no other reason why i am a lost its license but for the rule violations of these individuals with respect to i ask you to just sketch for us the practical stakes here you settled with two of the individual defendants so redirect that's right you're ok in terms of what's left what are we looking at in terms of overall or are you expecting in terms of ability to collect but if i understand your honest question correctly about the claims in the estate as we stand right now with the settlements will will not even come i mean the trustee is not even at the point where she'll be making a distribution to the  secured creditors as a result of the settlements because of the administrative claims that they ran out there's large amounts owed to the attorneys who represented emerald during the chapter eleven case and there's amounts o on various other things and so the trustee needs to collect the two hundred seventy two million dollars to be able to make creditors home perhaps even a little bit more than the one so none of the know the settlement were involved  goes against the two hundred seventy two million well it doesn't the sense that if your honour's were to say that two hundred seventy two million dollars is well given that is that that's the number then yes we would and they're the jointly and severally liable the amounts we collected from donald flynn and walter hanley would reduce those amounts and then the balance would be what we would collect we would agree with that we don't think that we can collect two hundred seventy two million dollars six times over we just think each should trust and so we will be in litigation in the district court over the validity of that spendthrift trust because everything only our interests is apparently in a spendthrift trust zombies and it's ok the other three defendants take the position that they cannot afford to make any payments under the judgment and we have done some investigative work about that and they probably are correct that we won't collect from mcmahon mcquade's you are saying you know we may be able to garnish their wages at the trustee chooses to do know the court entered several judgments against each of them for forty five million dollars and we would contend that that is an error and the reason why we think it is an error is is the purpose of illinois contract images are to put the injured party in the position they would have been in had the contract been performed each of these individuals breached the contractual provision saying i will not violate i g b rules and as a result of each violation me on my gaming boards that the license is revoked so we would contend each of those two hundred seventy two million dollars if you accept defendant's argument that it is too confusing to figure out how you parse that up that we have to parse out what percentage of the license was taken away by virtue of kevin flynn's lies as opposed to joe mcquaid lies as opposed to kevin larson's lies something you'd never see in the decision because a license is in divisible and we can't call the i g b t board members to the stand you can't call judicial implies educational officers to the stand to wait their opinions and what they thought was more important take it at its word then we think the district court judge should have applied the theory of concurrent breach there is an illinois court decision the insurer one case which imposes that doctrine under illinois law it doesn't come up very often because it's an unusual circumstance where you have an independent contract but multiple parties all preaching the exact same provision and the damage being an indivisible thing but that's what that rule is designed to cover their alternative just let the wrongdoers off the hook because of an impossible burden of let's let's not look at the root of the defendant's position with the district looks a lot like a question of intent and starts to feel very much like the factual question that the district were looked at carefully and came up with a reasonable solution for a mess tony what's wrong with  the district judge nor we are required to follow that you know but the presumption is under the west decision thems that report case going back many years that because we don't want to have two bodies of law one in the federal courts and one in the state that if you have  intermediate state appellate decision no conflicting decisions because there are no conflicting decisions we checked again yesterday to see if anything happened citing that case and nothing cites it for the concurrent breach issue if you have no conflict and you have the supreme court declining review than the presumption is she will follow that case unless there are strong persuasive legal reasons not to do so and we would submit as the district court acknowledged that in the area of tort liability this just case the she and case where all the officers jumped on an individual and caused his death and couldn't tell which persons jumping on him caused it that when you have a unique circumstance like that the courts do find all are liable i each but that not here's where here's where the separation of tort and contract becomes important because the contract royalists is different there has to be a joint obligation for there to be joint liability under contract law but what you have here what the concurrent breach doctrine does is it recognizes that even if you have single liabilities because each of you is breaching the same provision that's what restatement second second two eighty nine does as well it says each of you have a separate obligation you each cause the same harm to the non breaching party and therefore we're going to make you each responsible for the full measure of the contract damages yes and that's also consistent i think with a fundamental rule that if you accept their view that we have to somehow prove an exact percentage of loss of a license they've created an impossible burden of proof whereas i think the law says that if you breach contract the court isn't supposed to establish a burden of proof on damages that is impossible for you to meet right again that's a measure of damages question but the key damages issue here is number one whether two seventy two is the right well right now the settlement the summons did nothing because each defendant was liable for forty five point three million dollars so don paid his judgment and that doesn't impact kevin flan or any of the other defendants because he paid his judgment and his judgment was unique to him if this person said this joint center if you say it's joint several then and the numbers to seventy two then we would say that we would acknowledge that the forty five million would be deducted from that as would walter himly seven million dollars and they would have a credit for that they don't get a credit today as the circumstances currently exist one of the point that we would like to make where we do think that the district court made a legal error that doesn't need to be corrected as with regard to defendant peterson the district court basically said i don't think notwithstanding that the i g p said each will two three five violation alone supports revocation of license she didn't think that those were violations the i g b to revoke the license and her reason for doing that was to go outside of the four corners of the i g b final order and to look at other evidence and to conclude that she thinks the i g p really would have settled bills if they were ending on their own and we think that that is an error of law she has to accept what they said as written she can't we couldn't call the i g b t officers to the stand to talk about what they thought about the rule two three five violation their decision clearly says they think they are important and in terms of what she looked at outside of the record we would submit that it doesn't support what that was just an error report the staff report and that staff report on defendants exhibit six seventy eight what it talks about as being something that they're not addressing and that they don't need to address is the failure to disclose the purchase of shares by donald flynn from peter peterson that's different from the rule violation she found the rule violation she found involved the five insiders where he arranged that sale with regard to that there is a staff report that comes in september of two thousand it's dx six sixty two and the it states that mr flynn acquired a share of five of the original investors last year with these purchase agreements were not submitted to the board for approval as required by rule three thousand two three five further investigation is necessary to determine why these transactions were undertaken without court approval so in their own investigative mammals applying to look at investigative memos to determine what a ruling says which we would submit in and of itself isn't proper but if you're going to do it those mammal shell that they did think that that was an issue that needed to be investigated and they obviously thought it was important because after both of those memos are issued the disciplinary complaint paragraph forty one charges that these five individuals transferred stock in violation of two three five the court's focus on the i g b settlements under rule two to four there's a rule that the i g p has under rule two to four that says every corporate license holder must have a procedure so that it shareholders can sell their st many many times license holders are not public corporations they want to make certain if they want someone out as a shareholder there's a means for them to get their stock sold that provision does not say it excuses all violations of rule two three five it does not change section five of the act which makes revocation a penalty for violations of the rule two three five it doesn't do any of those things it just says you have to have a procedure in case we order it the settlement that she focuses on the settlement enough that occurred in june of two thousand and it kind of also goes to defendants foreseeability argument in june of two thousand exhibit fifty eight and it's the june thirtieth two thousand meeting they vote not to renew the license for the emperor's casino the illinois gaming board takes the position that the buy a lation zx and conduct that they felt made mr binion ineligible onery on ninety eight percent of the casino was a reason not to renew the license it demonstrate shows puts everybody on notice that rule violations are a basis to lose your license that they do take that seriously they ultimately settle with mr opinion and they say ok you can sell your ninety eight percent under very strict terms and to which he only gets you know his money back and you know doesn't get a profit from the whole circumstance he didn't violate rule two three five so it wasn't a settlement of rule two three five it's the same settlement they made with the flans in emerald that they didn't comply with and got blown up and did in the i g p proceeding so that whole situation with m isn't proof that they always sellable two three five violations it has nothing to do with rule two three five and the other thing i would would state as the court the district court makes the statement that she that the court thought it was the totality of the circumstances but if it's the of the circumstances and mr peterson's will two three five violation would fit within that the other point where we think that the district court made an error was in hers and was in the statute of limitations ruling she accepted that adverse domination is set forth in the law and the decision controls in illinois this court has also found that in the stewart decision it's being what feeling like courts should apply and under illinois version  it is the majority domination theory so in other words once the trustee proved that the majority of the board was controlled by people who would be defendants the mosses then the presumption is that their knowledge i not going to be imputed to the corporation and the corporation can't know all of the harm it's time to see even if there's an innocent director that presumption can be right about it only with someone showing someone had knowledge and the ability and motivation to sue and the court says that the ability to sue is what's most important here because we're imputing knowledge back to the corporation that's going to bar its rights and the innocent director and laurie was not sufficient to report the presumption the district court held and what was a legal ruling because the statue limitations issue was never tried because judge we're off when the matter was tried in front of him he had disposed of that sexual orientations before trial she said the creditors committee reports that if an innocent director who has a fiduciary obligation as a director and who could go to court and try to force his fellow board members to do something is insufficient to rebut the presumption that a creditors committee which consists of creditors who are adverse to the debtor who only know fiduciary applications to emerald the corporation itself should not their mere existence and the ability to ask the bankruptcy court for permission to sue be sufficient to rip up the presumption in addition we would contend that the district court flipped the burdens by saying it's not clear to me what the bankruptcy judge would have done had someone asked him could we bring the suit we do know what yet we doc said he said it was dubious proposition that he would have allowed that and if we look at what happened in the critical time period during which the statute needed to be told it seems inconceivable a court would have allowed a lawsuit and they certainly didn't prove that that would've occurred the committee gets appointed by november first of two thousand and that date amaryl is a party to a conditional settlement agreement that's going to allow for the sale of the license we only need to toll to december nineteenth of two thousand and three because we filed suit on december nineteenth of two thousand and eight and it's a five year limitations period we know the statute is told through the appointment of the committee because through that date either a majority or in the last several months complete domination of the board is by the defendants in this lawsuit so many twelve and a half months of tolling in june and all goes into bankruptcy court gets there matures november first of two thousand two to thousand and two misspoke so nov first of two thousand and two in the summer of two thousand and three end of june beginning of july and we'll files a motion to be able to hire and put in place good procedures to find someone for this option that's required under the supplement the bankruptcy judge would off he approves that they go through the marketing process all through the summer and into the winter december fifteenth four days we only have to get four more days to have the statute told our suit timely on december fifteenth of two thousand and three the i g b board says yes we will go forward with the auction as indicated in the sum in agreement and if the process continues and emmel continues to comply with the settlement agreement we will go forward will solve  license they hope that day passes they hold the auction on march tenth it's not until may eleventh of two thousand and four that the settlement blows up and the state of illinois elects to exercise their rights under the conditions and find that they didn't honor the terms and not go forward with it and this timeline goes to the creditors committees not its ability to sue but it's motivation to sue because to both they wouldn't have any reason and i don't think they have the motivation to sue because they have no duty to emerald and the cases that talk about motivation talk about whether you have a a legal duty to act for the entity but i also think it goes toward proof of the defendants have to prove that there would have been an ability to sue at some point between november first of two thousand two thousand and two and december nineteenth of two thousand and three and during that time period emeralds a party to a sum an agreement that is going to result in the license being sold the creditors being paid in money a lot of money going to the state of illinois and the plans being allowed to get the money that they put into and roll back out of the company as a practical matter what what  because you can't get double recovery for the value of the license is there a separate measure of damages for a fiduciary breach there would be joint several liability ok so it's just another way to get that's correct your joint and several liabilities are also indestr everything that happened he had said he was going to hold a hearing on punitive after he determine liability and other damages all those things have gone away right well he never he never got to rule you know stern came down in the district court decided she would just take everything we  completely tried the case we completely briefed it post trial everything was done the defendants asked that the reference be withdrawn judge did that because of all of the confusion with stern and they then were allowed to  repress sent whatever they wanted to about their defense reprieve everything and then we got the ruling from judge palmer so we never have we had individual rulings on different issues but with regard to that punitive damages shoe he was going to do it after he rolled on the merits we never got to the only other point that i would make with regard to foreseeability is our position is that for legal causation the purpose of this contract in response to your questions which hamilton clearly is to protect the license if you look at the two sentences that are found in that paragraph everything that the individuals agree to do is to protect the license and they were in control of world they wrote the contract mr peterson oversaw his partner writing the contract his partner mr brett thomas brett testified in the district court credited this that the reason this was included was because the i regulated emerald strictly regulated act and if any shareholder caused problems with the i g b it could be the end of an old loss of its license so it was put in there by defendants to protect themselves from actions by other shareholders and they have  million looks like i'll just say a practical solution to a very very complex case problem you've got an argument for six hundred fifteen million for three hundred seven for fo something given some of the various bits of various you know is there anything else you want to get out about that subject well your honor the i think the district court took a number that she saw no defendant may challenge too and she says that in her decision no defendant has challenged the two hundred seventy two million dollars sale they challenge every other piece of the evidence and the varying degrees the district court agreed or didn't agree with what their challenges were but she picked the one number that they didn't complain about and we think that number is too low particularly given the date of the breach although it relates back and what she says as i'm finding that to be the value on january thirtieth of two thousand and one the date of the of the breach that she concluded that the for each that's the value she gets there by saying there was this actual sale for that number and there was also actual sales of stock for three hundred seven point five million and there was also an expert appraisal that they put together in a case where they were fighting to keep all of the value of the license where they said the range was between two sixty eight and three ten so this number fits within these numbers and i'm going to pick it because it's also an actual sale number we think it would have been better to take the unconditional offer that would have closed in june of six hundred fifty million plus repayment of all of them or its debts it was really worth about seven hundred fifty million because the only reason that didn't close because it depends misconduct whether the i what ever they thought about rosemont they had to approve rosemont under the legislation but for defendants will violations and that's clear from decisions of the on my part for me on my supreme court and so we think that would have then the more let's make it clear here peterson had a very limited role on em here peterson was not an officer of emerald at the time he was not an employee of emerald he was a he had no role in renewable or a painting of the license he was not responsible for any of these activities he was a outside director of the company and he owned no more than three point five percent of the shares he was a very minority shareholder in an outside director he had no role in the license renewal process therefore it is not surprising that peterson was not a party to the pietersen is not named one time there is no mention of him at all now you speak i gues that well there is some language about the officers and employees directors key people  however it's clear that that does not mean pietersen the cheers ounces or the director they didn't even sue she leaves out the fact that he was represented by her law partner but ok there was a director they didn't sue they they didn't sue the does not seriously argue the judge paul meyer appeared in reviewing the record in determining that peterson did nothing wrong that caused emmel to lose the license instead the trustee argues that the district court was not free to of the license as noted the i g b final order never mentioned peterson at all nor was his testimony so odd by the i g b the what the i g b did say was that there were several violations which could justify which are sufficient to justify the revocation of license not that cause but sufficient to justify the district court took that language into account in reviewed it and i think this highlights another problem with the trustees argue it's its undisputed that peterson was not party to the i g b proceedings he was not named that was not represented he wasn't there overcome us and say i'm running short on time it's in my brief but let me address one last point the the court did book did below find that peterson did violate rule two thirty five  that that cries this was the fight the insiders appear pearson was not one of those five insiders the district court found that that mr peterson had quote unquote arranged these transfers and other was he doctors or lawyers in these transfers that is not sufficient to violate the rule he what he did was he has had his people drafting purchase agreement that says these transfers are subject to approval of the i g b t so what there is nothing mr peterson rosemont near done stevens yeah g b says kevin flynn flat out lied about emeralds plans to move to ever thought to rose much that isn't correct and the district court found that could not be proved the agreement to carve up the interest in emerald in order to obtain relocation to rosemont was not approved says the district court didn't really find that the district court found that there were meetings with dishes while there were meetings with the davis companies and didn't really find the key findings of the i g p worker on proves that's incorrect the davis agreement was central to the i g p order and the district court here found that the davis agreement was not proved so all that goes to say it's true the ip of the order cannot be read as revoking the license based on disclosure violations yet is what the district court found occurred here your honor asked the question about active concealment versus negligent failures to disclose that's exactly that's a crucial distinction between the  and found rules violations it's not clear to me why those conclusions warrant of the federal litigation but that wasn't a pos i understand so it's not really before us but i don't understand why it wouldn't be enrolled at the relevant time he was not the c e o of emerald during the regulatory proceedings he was not the controlling shareholder of emerald during the regulatory proceedings so the only basis that's offered for using the i g p decision and the appellate court decision in two thousand and two the i g b revocation proceedings were primarily in two thousand and five there was a brief window of i g p revocation proceedings earlier in two thousand and two but they were almost immediately terminated when the involuntary bankruptcy petition was filed so he's formally separate by this time yes ok yes ok well that explains it then yes so and beyond that of course the i g p did not find that kevin  of organized crime in the order was not you know eliminated by the appellate court's ruling but appellate court stated that its role in reviewing the i g b order here was to determine whether competent evidence existed to support the factually unsupported in this case so that's why it's this is crucial to the causation question actually be had a major focus on the active its perception of active concealment it perception of connections to organized crime its perception of collusive schemes to deceive the i g b playing fast and loose with the last transactions etc all of which the trustee failed to prove in this case because the trustee failed to prove those there's nothing in the i g p order to be order what remains of it is insufficient to establish causation to establish that the rules violations that the district court found here caused the i a separate claim against individual defendants attempting to hold individuals liable for tens of millions of dollars based on their agreement to comply with regulations as shareholders the ruling and mr peterson we indicated that all thought right just on mr peterson not no other way but we also incorporated that same argument as an alternative basis to affirm the ruling against the defendants and that's in the mr lowe said that the i g p settled the violations involving the five insiders they settled all the violations on a conditional basis and the settlement fell apart that part of the settlement fell apart and they went ahead and then found that that was a war violation so that was tentatively settled like everything was but the settlement became an elegy when they breached the conditions you have a response to her such i let her come back