for there to be a future problem is somebody would have to see you both then there would have to be an assertion of joint several liability and and a fine so having never had it happen before and those things stand  how is this not explain how this isn't so speculative as to warrant the district court's finding well first of all you and i think you're defining down what rights were actually  abstract some rights exist but the question we have to deal with is has there been any injury in fact have you suffered some loss or are you likely to suffer some loss if you say i have a right but that in coed right is something you've never asserted it's never been determined to have any value at all and you to date not that anything and there's guesswork about whether that will happen in the future i'm trying to ask you if you'll wrestle with the district cour specific statement that that's just too speculative well if it's not i think the record is clear that these rights were very valuable to go before the bankruptcy case when our locke and grace was sued grace was paying the lion's share of the law billing garlock was a nominal defendant and really paid very small parts of the ability in two thousand and two thousand and one there was a bankruptcy way and grace and eight other top tier defendants went into bankruptcy and the testimony in you have to have an injury or possibility of injury that sufficiently imminent and what george is getting at if it was so sufficiently imminent about to occur and we've gone all this time without anything any occurring then at some point you don't have standing that i don't believe it's correct to assume that nothing has occurred there's a clearly that proof a claim is not necessary i understand that i have to you can't point to a particular case where you paid more than you thought was your share and you felt that you should have filed a claim for contribution against grace that's right i cannot point to a specific case ok but god still has that right god has the right well once it gets named in a lawsuit has the right to join grace to that loss and when did the lock file for protection for chapter  the only thing that you really have perhaps going for you is that there's a stipulation which says that it's likely that you will be subject to claims and yet at some point likely diminishes when you haven't been subject to claims for such a lengthy period of time well the reason we haven't been subject to claim john is because grace is in bankruptcy for the last well i mean before two thousand and ten and before two thousand and ten we were constantly sued in cases in which christ was a the bankruptcy has been in existence for a decade my correct grace is not ready for about twelve years right ok i and i take your argument to be we had some we were getting a benefit  in negotiating with s b s this claimants and potential claimants because we had grace in front of us they were running interference and now because of the injunction and the protections of bankruptcy they're isn't the case for over a decade and yet there's no proof of claiming there's nothing in the record you can't point this to anything that shows it that in the in that ten twelve years you've suffered any harm by somebody coming  they were found by plaintiffs who alleged that if grace had not been in bankruptcy they would have sued grice as well in the cases that were searching against our law i'm still missing your i don't need to be abused but i'm missing your point the fact that you got sued your assertion is i'm injured in fact because grace is in bankruptcy and protected and the question that's been put your people lead by people piers when have you ever asserted that you had some monetary injury you by way of proof of claim or a judgment that you can hold up to say this was what we would assert if it's in there you have appointed to us and that's what's making it difficult to imagine that well it's go circulate because it sounds to me as if you're saying we would have sued and then we would have had joint several liability and we would have made them contribute but for the automatic stay and the fact that we never filed a proof a claim we never showed up in climb can't be allowed until it's actually coming to fruition so that would not have been a basis for filing a proof of climate that circumstances but we had rights and those rights are taken away by the injunction ok you have rights but you don't have you apparently don't have any case where you had to pay point of a b or c where you have a claim against grace or you would have asserted it somewhere we could not have a don't have to but all my asking a point too whether you pointed to in front of you the bankruptcy court or the district court is there a case where you paid out where you have a claim against grace well it would be have identified themselves as far as we know in the last ten years and that's been a problem the cases are right ok you settled you're satisfied that case is that case is gone now you're trying to articulate that possibly you had a right to have joined grace but you didn't join how can that be an injury in fact because there's an injunction that says we could have and i did that's why i didn't ask that question how could that be an enduring fact because if rice  speculate how is that not how is the circumstances that forcing the court to speculate there's no speculation about the actual injury and that is that garlic is a joint from ever filing a contribution claim against both clients unless i distinguish one from the other and i would like to leave some rebuttal time i don't think i'll be more than a minute or two that's what i think the central issue in this case is whether of five twenty four g or your i think our argument is basically threefold the first argument is just based on section five twenty four g our claims are not discharge they're not subject to the trust and that we have the to assert these rights the claimant against reorganised they reorganize that right because they're not discharged because they are not discharged because of the language of the statute given legislative history home  a separate argument we have a if i can dressers stick with directly and indirectly why does why do the words or indirectly not undercut your argument well first of all your honor the term indirectly which is the one word in which grace kinds of statutory argument reason awkward though it is your honor but i don't know what it means exactly it's not to find in the statute and if i was to venture an educated guess i would honor that term is not specifically used in the statute it doesn't show up in the legislative history with her contribution indemnification ron let's go back to jordan question because if it's not direct it's indirect is there anything else that occupies the field besides direct and indirect a much better words if you have claims or demands direct or indirect is there anything else besides direct or indirect is one of the other is it not your honor we would say that we do not personally have a claim with the exception of montana's claim out or suit or which alleges that either of your clients failed to warn about the dangerous justice ok that's correct and if you your claim will come in a nature of if you have to pay out something on those cases which again which in montana is case of all been settled correctly that's not entirely correct your honor the settlement for forty three million dollars which was settled and paid in september of two thousand and eleven be out there you know there may be more than just a few who are all right but notwithstanding the number and the settlement status of them these are cases in which you had your client has either paid will have to pay and your claim against grace will be for what you had to pay on those cases correct that is correct now how can that be anything other than direct your honor because i think you have to look towards state law and when to write the payment arises and that's where anything other than direct under common understanding this is i think would the embers get into it in the universe of stuff direct and indirect would seem to be the code's way of saying everything whether you call  direct with you call indirect is there some kind of claim out there that's neither direct or indirect that you think you folks you know your are i think only our future rights of payment when we have to pay because we do not believe it falls within the technical definition of claim we're demand that's that's all precisely what we're trying to address is for monica was there is it that technical definition when the claim went when five twenty four g defines things as runs counter to that i do not your own while then why would we in this setting say well in direct claims often typically people understand they mean contribution on occasion but it doesn't mean that here why would we take that well here i think there's there's a couple reasons we we cited in our papers other language in five twenty four which relates to when the injunction is imposed and it says it must arise from a liability which the debtor is is a party to an action that involves property damage personal injury or wrongful death and we don't feel that our failure to work claims do not technically come within  then you look at the legislative history of if i were if they're not a claim where five twenty four g talks about shandling injunction with regard to direct or indirect claims or demands present or future it's a big universe i understand were your honour's coming from and our position is that if you look at the legislative history it talks in terms of compensation to two victims of personal injury claimants as opposed to all sides is that is and isn't the whole point of five twenty forty to look at what the johns manville folks and say hey that's a good idea we want something we want to mechanism a procedural mechanism that will allow these companies facing crushing asbestos life billet easy to get themselves washed if it's got something to do with asbestos liability directly or indirectly it's going through this injunction and they're coming out the of side washed clean if that's if if that's the intent of the statute how can carving out something with that because you label it a failure to warn clane when it when it's all about asbestos liability in the end be consistent with that legislative history that your point but your honor again  we think that if the statute isn't is at least in part it was in that respect but to answer your question the debtor's or the player proponents emphasize the fresh start which you're which you if you take our claims out of the trust and look the reorganized better that include that increases the pie for the victims and we think being subjected to this process which was designed to maximize the value for direct claimants to use a term and is biased against our claims is is is further supports our theories about why we shouldn't be included it was drafted by the claimants attorneys without any input for us it seems like your argument itself got very close to categorize in your  client's claims as an indirect claim as opposed to directly well your are to the extent montana has liquidated it's going for forty three million dollars but we think we come with we come with an exception when the prior to when the plan was confirmed so we think we fit within that all i'm saying is your honor that the right to payment has been recognized by this court as due process concerns it is back in just a minute how are mechanism to provide due process for the client i mean i thought owens corning was specific on that one i might be wrong about that but i'm pretty sure the court was express  in in saying that the due process safeguards in five twenty four g are of no help to the claimants as grossman's plan of reorganization did not provide that she only injunction trusts that vision in other words they didn't have that benefit and you folks do have that benefit so that addresses any due process concern that you would have had doesn't your i think you might be confusing the job with decision with point had a child line injunction i believe and that's the decision we're really relying on so i hear every time i hear the word friend bill it's randall to bankruptcy is like the word shank in golf you don't want to use it one time judge adams who wrote friend was being introduced and he got a great introduction at a bankruptcy group luncheon and he stood up and he said you know i really do appreciate it but just remember i'm the guy the referendum and i understand it it's been it didn't arise until we actually settled the made the pain i apologize if i got if i got that the names crossed jelled winner grossman's that's the one that says the issue about the jailing each option should address the due process rights crap and owens corning made a shift from prepositioned to pre con from ation so if the issue is due process let's stick with slash grossman's whatever you're comfortable calling it why aren't any due process concerns that you say exist in this shadow of friend bill addressed by the fact that there is a channeling injunction because you we don't want to be our right to payment we believe arises this petition even post confirmation we do not want to be relegated to a trial t t p process that we think is slanted that if we are relegated to this process it is unfair to us and i cited a number of reasons so that's sort of our third and final alternative argument to when you get down to the merits if we sit down it seems counter intuitive i guess that you're alleging that you may have a contribution or indemnity claim against grace for matters that grace may not have any underlying liability i mean a failure to warn is a gracious issue the failure to warn is montana's of the crown's issue that is correct your honor but still we still may have a claim for contribution them if occasion if basis that they were the proximate cause of this failure to work i  afternoon your honor i guess i'll start with montana since he was just up first of all on the failure to warmth keep in mind grace was sued for failure to warn all the time as well and also montana the crown pursuit on lots of theories other than failure  failure failure to act failure to regulate if you look at the crown's proof of claim in fact they say they were sued only for non feel or one theories but the real point here that the failure to warn is the legal theory doesn't matter it's not the nature of they had two hundred one thousand claims asserted during the chapter eleven case owens corning talked about due process and discharge issues relating to that time period they have been fully asserted they're not barred there is no due process issue if you speculate in the future for montana is it possible they would have future claims those are covered by your honest point that the discharge in charge the channeling injunction under five twenty four g applies here and it really doesn't matter if it's a claim or demand because congress was comprehensive in this cleansing statute and channel enjoined arrange to be paid any type of claim or demand no matter what it is so the right vs owens corning only implicat hypothetical future claimant who might have a due process or due process or discharge issue if there was a bar date that they missed perhaps that's that that's that case and that's not their case because they're here in court representing themself so they have no due process and again it's the nature of the five twenty four g one and two for a claim five twenty four g five for a demand say it's the nature of the conduct if the contribution or in them an indemnity claim indirectly arises from that that gave rise to the injunction its channel and enjoy not the nectar of the clan i'm sure we'll be hearing about this from others too but would you address the argument that claim and demand are mutually exclusive terms yes  r that's that's what i think of i see what i call a hyper literal reading of the statute and five pony for g five a says that but if you look at five twenty four all of five twenty four g b it's clear that the statute is using claim and demand interchangeably from time to time so for example in five when a four g the statute says a demand is defined among other things as a quote a demand is defined in part as a quote present the man for payment now that is it what it what is that that's exactly the same thing as a current claim present demand for payment exactly the  as a current claims in the same statute five twenty four g is not using them as mutually exclusive it's using a present demand in a current claim as the same thing now they rely on another part of five hundred twenty four g which is g five a the part that says a demand is a present future demand for payment that's a not a claim during the proceedings leading to confirmation of a plan of reorganization that's where they get the mutually exclusive argument but i think the key thing there is you have to read the whole phrase what does that mean when the statute says demand is something that's not a claim during the proceedings leading to confirmation of plan a reorganization and the legislative history is very very line quote from the beginning a central element of the case was how to deal with future claimants those who were not yet before the court because their disease had not yet manifested itself as of congress is using the term first of all they're using future claim and future demand interchangeably again and i think they are used interchangeably overlapping a lot in this statute that's consistent with the purpose of making sure the injunction covers and cleanses everything doesn't really matter which one it's call the congress you're saying a future claim is one that's not yet before the court because the disease has not yet manifested itself and this fourteen times in the legislative history in three pages were future claimed future demand or used interchangeably or defines saluted as where this preposition exposure and this legislative history that says a claim is something not before the court because disease hasn't manifested itself yet usually we and so what congress has in statute yes what shows up in legislative history right but this is this is a case where if you follow their hyper little literal application as judge fitzgerald said and when you write the whole statute out of the book it was it was a knowledge t and it was dead on arrival in one nine hundred ninety four when it statutory requisites is the debtor the court has to determine that there's a substantial likelihood that future demands will exist that provision can never be satisfied under their mutually exclusive claim and demand argument because everything's a claim there's never a unusual situation where they have a literal reading argument but there are these canons like kids vs when supreme court cases don't apply and absurd don't apply an absurd interpretation they didn't make this argument here but certainly didn't they argue that the first in first out rule is going to clearly result in disparate treatment in direct claims yes or how similar an indirect claim and although they don't want to knowledge been direct climate if they're an indirect claimant why aren't they right in this fight of argument well for one thing it sure doesn't hurt them because they made over twenty thirty forty fifty years and you have to have a mechanism for paying claims that way so it's been vetted and every case this court and federal mogul said every every five twenty four g case has five votes the only sensible way to do it other than they say the only fair mechanic is to wait thirty forty years until every claims in and then don't pay anybody until then and i don't think anybody thinks thinks that's fair so the five ball i think it's the only way to do it and i think it's necessary the property damage future claimants looked at judge sanders testified as reasonable assurance that the funds will be there david austin said it's likely the funds will be there for decades and that's because of things like the procedures are the same for the currents in the future their deferred payments grace makes one hundred one hundred ten million hundred and one hundred million cash payment annually out to two thousand and thirty four so there's this evergreen funding mechanism and that's why judge austin concluded yes the funds will be there judge which gerald adopted and credited that testimony if you could turn through a garlock yes or no and garlock the just of their argument on turning to the merits briefly at the start because they're really focused on the fair and equitable test and they fact away from the absolute priority always a term of art as i read their reply brief but they're now saying listen before you go to the merits you know we spend a lot of time with carlock attorney on standing yes  be completely candid your honor is it was it was a tactical decision because we were we felt the lower courts got standing right but if we lost we've been in bankruptcy twelve years we didn't want to get reversed on standing and then have to go back down on the merits and lose another year or two of the case that's that's all that it was that's why we asked and garlic joined us we do think the lower courts got it right and bankruptcy standing they have a higher standing under a person aggrieved with the rule of an injury that we should be looking  speculate and i think this is hypothetical it's speculative it doesn't pass the person aggrieved standard of you know immediately became very impact but you could speculate that at that point they'd be likely to have claims to serve in the future that would be impaired by the by the cap on damages and so forth that's why we added into the stipulation was that if at the time there wasn't a chapter eleven and we said they'd be like that at future demands now at the chapter eleven it appears highly unlikely they against whatever trust they have set up is there any basis or any reason or legal foundation for them to say that doesn't that doesn't take away the fact  and and we lose those we lose those rights because of this grace channeling injunction i've heard them say and i've seen a lot of briefs i honestly don't follow their point on that your honor because contribution under illinois law where i'm from all the states i'm familiar with it really arises it becomes an injury once you get a judgment or settlement you're ready to hand over the paper present the judgment or settlement or or collect so i've heard counsel argue that but  i don't follow their point about where are these are the claims or demands made against garlock in connection with it's against his bankruptcy estate well it's in bankruptcy and you can see in that situation would there be standing no guess in a sense it's moot because the purpose of bankruptcy standing us to law parties and interest to participate fully and they certainly participated very fully even got supplemental hearings before judge back walter just for them on stand extending the merits but what the absolute us just no entry at all i think it's i think it's really different take take for example in the clinton new york case new york city and the hospitals they had to mediate impact from that line item veto which was that their budgets and their finances their treasuries being it impacted in anticipation of what would happen with that decision may have been a little thin but there was standing here there's just the automatic stay is a strong barrier and there's just no impact on them  seven fold very suspicious job in so like plan silicosis claims and even if the plan was insurance neutral as the debtor argued there they had this big jump in administrative claims they don't have any comparable financial jump like  thought that's how i distinguish global industrial which i know is very broad in bankruptcy standing we appreciate that course more just way yeah yeah we don't want to have to ask you later something we should i was going to sit down to rest my voice but judge fisher is coming back at me i keep coming back you have more time and i want to get you keep you on your feet assuming we did find our locket standing yes or ok and it appears that they've abandoned the absolute priority rule argument but what do you think in this context question all of those cases you look at the traditional set of that will factors is it in a reasonable range of litigation process probabilities was arm's length was it good faith how long complex that go on it was fair to creditors here ninety nine point five percent of that class this class voted in favor of this plan and the bankruptcy court had a very full record years of intimate oversight of the case your oversight on the negotiations the mediations before a former judge pointer two trials dozens of witnesses saw the wrist of both sides heard the testimony of mr auster and then the future claimants rep he had spent four years of due diligence with financial advisors claim advisors liabilities counsel very actively working he was in the middle of the negotiation the middle of the trial they had this big dispute on the liability two hundred million dollars to four hundred sixty eight million we the debtor at that time as claimant said magnitude order of magnitude higher seven point four billion and it was settled ten days into the trial because both sides were at risk and mr austin said here's what he looked at both non monetary factors in financial factors he said there's a big downside rest and all mr frank will get up and explain this morning minute there's a big downside risk if we don't settle in the middle there's a huge risk that these other non monetary benefits like the deferred payments going out two thousand and thirty four and then look at all the financial payments one point eight billion cash from the debtor five hundred million of insurance four hundred ninety million of warrants billion plus and settlements contingent on the plan going effective from the former subsidiaries who had settled out of the project to transfer litigation and he looked at all of those and said after doing aggressive built due diligence this is fair and equitable and judge fitzgerald relied on relied on that very very powerful testimony rich record and we believe in title to deference an abuse of no certainly no abuse of night close to abuse of discretion what way over that about as full of records as you can get you know and that's that's where we come citizens are getting the short end of this they're going to recover oh absolutely yes yes that's their that's their property they have they have a personal injury issue and then they've that's their property damage and they say well this isn't fair because we're getting one seventh this much as the have the denominator comparing how many claims are going against those claims there were a million c i i claims in the united states and we don't have any record of any in canada so when the records differ devoid when did this come up for the first time  in their brief i believe i don't remember seeing it before there's also a legal issue that eleven twenty section eleven twenty three four of the code as i know your honour's no deals with discrimination with among members within the same class u s e i claimants are in ago and now speaking as counsel but have been as mr donnelly indicated appointed as the future plans are presented mr all stern was appointed by the bankruptcy court on motion of w r grace to represent those that will assert a personal injury demands broad term in the future as soon as he was appointed he hired advisors so that he could fill his duties as a legal representative and as mr donnelly indicated he hired lawyers he hired financial advisors and most importantly hired claims forecasters these helped mr auster on the sest the complex financial and legal issues which affect the fact that his constituency these experts were at his side as he helped negotiate the contributions that would be made to the five twenty four g trust pursuant to the plan there were many factors for mr auster to consider during the two thousand and eight two thousand and nine time period during these heated negotiations there was significant uncertainty regarding the magnitude of the president futurist as disclaims it was significant uncertainty regarding the financial condition of grace and perhaps most importantly there was significant uncertainty regarding the outcome of the estimation trial as mr austin testified settlement negotiations over the plan and thus the contributions to the trust were arm's length lively and intense mr austin testified at the confirmation hearing that the plan was fair and equitable to his constituency he testified based on his own experience in this case and the advice of his experts there was no expert for that matter no witness at all that testified that the plan was not fair and equitable a balancing of the contributions to the trust with the range of liabilities that are arrested in the primary argument for that is what well your honor i think it's it's the same reasoning of the language  it cannot mean absolute priority in the other twenty nine cents because you have a seventy five percent vote requirement that cannot be overridden or at least it's not clear in the statute it can be overridden like it is an eleven twenty nine b so i think mr austin looked at this and took the commonsense meaning of fair and equitable to maine and my getting a fair contribution to the trust in light of the potential outcome of the estimation trial which was hotly  primary argument be that fair and equitable was used in five twenty four h but it's not used in five twenty four g well it is it is used in five  but i think mr rossiter did did the did your client or the district court make a specific determination as to whether or not grace could have contributed more i don't  believe that there was a specific the terminations in the record that grace could or could not contribute more i think that the way this came out was a settlement of an estimation trial and the the what was stark about that was that grace's expert grayson put on its entire case was that it had somewhere in the neighborhood of two hundred to four hundred million dollars present and future especially those liabilities the experts on the other side the a c c and the future claims representatives were in the seven billion dollar range so there was a lot of room in between to make a settlement grace could afford to pay a lot of that  but it was not clear at all to mr alston that grace could afford to pay seven billion dollars and for him to take the risk as a fiduciary that he's going to win the estimation trial is a risk that he's really shouldn't be taking when there's an alternative could contribute your honor i don't think it had to evaluate how much they could possibly contribute i think they had to evaluate that it was a fair amount that it was contributing under the saddle i think that's what was critical and it would have to put in perspective grace's financial condition was changing during this whole case and mean when grace filed for bankruptcy it was teetering and we go through the case grace is is doing better but even as we're negotiating back in two thousand and eight in the in the heart of the financial depression recession that we were in it was not at all clear how much price competitive i think what the court evaluated was is this a fair amount considering all of the different factors you can if even if the absolute priority rule is not incorporated into five twenty four she formulation of fair equitable  should give us pause the equity holders have everything and the claimants get twenty five to thirty five percent i think that the deal that was made settlement that was made was fair at the time and it's still fair it's a lot of money that's going into the trust grace has an obligation to pay a billion five over fifteen years going out i understand keep one hundred percent is irrelevant were were is that something we should be paying attention to were properly paid attention your honor i do believe that or for this purpose for the purpose that mr alston looked at this available in other words we think that the fact that the shareholders retain equity and retain a sizable amount of equity might have happened the way it happened or might not have at the time that this deal was negotiated all of that was taken into account by mr auster and his experts it wasn't just mr auster and the stock was was something don't forget one of the contributions to the trust was a war so the trust benefits from the stock being as high as it was so all of those things were taken into account thank you but let me just go back to the fairness of a very reputable the words are used in three places in the code right five twenty four g as you note by twenty four g four b two and five twenty four h and also eleven twenty nine eleven twenty nine you're saying something different in effect than five twenty four i think that is what i'm saying because because eleven twenty nine defines how the fair and equitable treatment for instance by allowing the crime down and you can essentially vote that the treatment is fair and equitable override the fair and equitable treatment i don't think that same provision that same language is in five twenty four g and i don't believe it's an oversight that it's not in five twenty four g b they required a seventy five percent a very high majority of present claimants they require a futures representative and if you have the support of those two constituencies i believe congress is saying yes you can have a contribution that is fair and equitable without meaning absolutely as fair and equitable under five to twenty four h in something different then fair and equitable under five twenty four g i believe it does your honors but honestly i i would pass to mr lockwood on five twenty four g h that's i've seen this red light on for so long thank you absolute priority rule was it was applied to if you read the decision there was a senate report equity shareholders who claimed that another group of shareholders shouldn't participate deal by the way the shareholders retained twenty percent of the equity of the company that's demonstrating that it is ok in the legislative history to have some equity retained in this case  pointed out the trust got ten percent of the equity in effect through the issuance warrant of the trust so there's really the five twenty four h does refer to eleven twenty  doesn't seeing in congress that you would have the same term used in one subsection and the immediately subsequent subsection you have the same term used but it means something different well doesn't mean just your century construction this is there right now right there's a seam in congress that you're that you would interpret the same term in one subsection different from the way you interpret it in the immediately subsequent subsection well in the first subsection it's defined in very specific terms and it requires you to measure the contribution to the trust against the benefits received by the party making the contrite not answering the question and me well it's has the scene in congress but there's an answer to what is what you're saying yeah i mean part of the problem i think arises t certain places it isn't in certain places it is i believe i think bankruptcy judges and there's court decisions to talk about the treatment of creditors in a bankruptcy case has to be fair and equitable the term is is is is a term that is sort of situational if you will you look to whatever it is that's being evaluated in the sense and you read it in real can you imagine making that argument that justice  b it's also it's fair and equitable means and then it lists a number of subsections and one of those is the absolute priority subsection but but it doesn't say absolute and equitable includes and one of the tests is the absolute priority rule that's demonstrating as i believe one of the appellant's has argued that fair and equitable is not limited to the absolute priority rule even sectional levon twenty nine b itself you might i understand the question i'm not sure i fully understand your but the answer might be in the text of a love five twenty four age it's pacifically refers to eleven twenty nine it does and it also refers to as being and it is might not be any more complicated  bankruptcy plans are consentual if you put it into five twenty four g how would it work it would say that you couldn't create a trust if equity repaint any value mandrill itself or paint twenty percent of the value why would  congress have decided they stay on a precedent where the shareholders of manteo were retaining twenty percent of the equity the company to apply rule that said you could never have a five twenty four g trust if the honor with respect to the question about the five folk you the judge fisher raised i would i would point out that the the manner in which that five folk you being at the end of it is protected is studio operation something called the payment percentage and he which is established by the respective claims estimators for the futures representative and the and the present as best as clients and the purpose of that is to make sure that throughout the law the forty year life of a trust the payment percentage will remain the same and there's a specific statutory provision in five twenty four g it's five twenty four g to be two five that says specifically the trust will operate through mechanisms such as that the trust will value and be in a financial position to pay present claims and future demands that involve similar claims in substantially the same matter that is the provision that is a crime that has resulted in  who represents the future claimants with respect to the trust and in that capacity as the trust agreement and our papers point out the role of the pac is very limited very high level supervise the thing packed us not get involved in the resolution of individual claims and thus the pac numbers are not in a position to affect the processing of their firm's individual claims and indeed the also dealing with dealing with the rights of lawyers and their clients who they don't represent in a capacity is that it finally anything that they do is subject has to be agreed to by the to resolve the dispute so their power even with respect to the high level advisory capacity that they operate at is very limited and and so we think that and these taxes been used in all of the cases again going all the way back to mangalore it's called the select counsel for the beneficiaries one final point your honor has to do with the git case which i had the fortune of arguing in front of you the point here is that git the insurance companies judge jordan help had been the nod the opportunity to participate in the bankruptcy place case as a result of denial bag stand if you could a just talk about briefly the the fair and equitable issue that we were talking about relating to five twenty four g and h yes our we believe a and if you put in there that future future the man holders have to be paid in full even though you know don't necessarily know who those richer man holders would be that well the other side here is that if that's the rule you can't make one of these things function because you know obvious never intended take everything away and undermine the existence of the company completely i think that the be  and in that case they would and their judgments provision i would say that any creditor who actually takes the trust to trial gets paid one hundred percent and then the question is whether that was the purpose of having a seventy five percent majority in the statute itself not address for congress understood knows how these things work and said look if you get three quarters of these classes to agree to it then that's good enough for us rough but that's not what congress said congress said you need to v and that's under one provision that under a completely separate provision said that naming the debtor in the injunction with respect to future climate has to be fair and equitable with respect to future climates in light of the contributions of the debtor so that's asking the question how much much much they'd better pay to be completely cleansed of it's a specified village it's basically directing the court to measure the amount of the benefit of the trust of the debtor here of the magnitude of this charge well bob twenty four g says that the court must determine that naming a better and an injunction will be fair and apple to persons who might assert demands or feature claim so yes there has to be a determination that future claims will be paid in full before shareholders participating that's what fair and equitable that's what the term of art means and that has to be we submit what congress meant when it used that term fair and equitable so the reason the eleven twenty nine is not referenced in five twenty four g four b two is what is because congress was not adopting eleven twenty nine b it was adopted the term of art as explained by justice souter and bank of america the term of art that existed before the cut at term of art was describing case after case the case the lumber case the boy case and most recently in the bank of america and that term of art says that the holder of any claim or interest that is junior a few minutes ago that the creditors are entitled to be paid before shareholders and participate that's what the term of art means congress we believe knew that when they did not get five twenty four g and that's what it meant in this case but doesn't the bank of america case a the exact opposite no the bank of america case was trying to determine whether with and within the fair an equitable definition that was adopted in in london twenty nine b whether the language there had made room for such a new extension of value exception to absolute power but it's really about it's more than notice it's in the job in cases this it's more about our right to assert future claim or future rights to payment and if the court agrees with us then we're permitted to go against reorganised that are the problem i keep coming back to is that it's hard for me to conjure that the debtors didn't warn the citizens of montana or citizens of canada with regard to a possible problem that's being alleged against the sovereign it's not really being alleged against i think there might be i'm not i'm not entirely sure about that my only point is that if if we're right in arguments that we have the white to go against we're going to use that or and the pi decreases for for the direct plaintiffs if you agree with the plan proponents or the debt or more specifically then we're reduced to going against the trust in a tortured process that's going to decrease the pie for victims and i think the legislative history we might say it's going to reduce the pie for the victims is there's more than one interest in play here i mean the fact that there would be more for victims necessarily means zero and you could go against grace outside necessarily needs there's more liability for grace as a practical matter why injunction provision is simply about growing the pie a bill to pay victims well so it can't be simply about that right even if one senator said it was simply that this is a complicated legislative fix for a complicated problem and even you acknowledge i think that part of this is a fresh start and that's that's a piece of the bill that are just asking us to focus on one thing to the exclusion of that other in a way that the statute sort it seems the council against that that effectively renders a statute in the lady yeah right i do not agree with that i think that's what i just said is that if we're permitted on our future right to pay me to go against grace grace is stated in testimony i think it's in our papers that they have the ability to pay a seven hundred fifty million dollar contribution from the vacation judgment that they could be and we got it for robert this is that this discussion let's take it out of this case for a second as a as an abstract legal matter of weeks up the theory propounding what is to prevent every indirect claimant from saying well that doesn't mean us hence increasing the liability for future debtor and and  making peace kind of the use of this kind of mechanism in effect well your honor i think i think it's been handled differently i think at the bankruptcy court level whether it be get getting a separate subject to we should not be part of class that we were different i thought that is a monster that we have been nice if over and over again if this were different but that's interesting ok that saying thank you very much thank you thank you to all counsel for a very well presented arguments and also well done