very broad claims bar that wipes out even the tribes contractual obligations to my client the pappas is and conservatives who are the non settling defendant and we've objected to this claims bar this is an unprecedented use of a claims power and we ask that the court remedy the error and we have two requests for relief first we would like this court to clarify that the claims are does not encompass contract claims the sanctity of contract is a fundamental right it's actually in the constitution article one section ten says that the state cannot pass a law that impairs the obligation of contract there's no case in all this paper no i don't understand how we clarify some other courts order i understand how we affirm it i understand how we reverse it but how do we clarify what a district judge nandor didn't mean but if clarification doesn't work for the purpose of that they don't have the authority to declare i do not standing here today your honor i would ask them for a reversal to clarify it through to undo the portion of the claims bar that applies to my client or at a minimum to say that it doesn't block the bringing of contract claims let me put it in perspective if the ford motor company were to put were to sue would tear one in a tear to supplier and then it settles with the tear one supplier then settling tyr one supplier is not  claims bar order that blocks the tear to supplier from bringing contract claim what you call a contract claims as i understand there is other litigation going on in which you have brought claims which the district court decided on the merits at least at this stage is that the claim that you're concerned about or is that the kind of claim that you're concerned about in other words is that the only claim that you put they had unpaid amount owing to them judge bormann felt that his claims bar was so broad that it would even bar the good sarah says from pursuing those unpaid claims thankfully the tribe did not interpret the record on the merits the judge there is a ruling below that will be back before this court in the not too distant future because the issue below the judge borman ruled that a concession had been made though they get zero counsel says there was no such concession made and therefore there's going to be an appeal to get zero says do intend to appeal a i see your distinction between pappas and good service does pompous have any contract claims that he wants to bring that he feels are barred guarantee claims are are not even ripe until there's a loss and what's interesting is that in the pleadings below and to this court i must say there are third party beneficiaries does that they're not guaranteed directly in the way that good saros is they are guaranteed directly in the way they get sero says but that guarantee arises from a whole separate transaction from the one that is being litigated in the adversary proceeding the guarantee was granted in the year two thousand and two monroe partners get sorrow stand in any different relationship from each other these of you that guarantee right no your honor they don't thank you our second request is that the court reversed in ri man to require the district court to have an evidentiary fairness hearing after the conclusion of discovery in the adversary proceeding the threshold issue here is whether it's fundamentally unfair to bar future claims of pappas and it's arrows at this early point in discovery in the underlying case the district court effectively dismissed all of our client's potential claims by holding them to a summary judgment standard rather than the standard that this court set forth in mcdonald vs star bank which is does a claim even exist the facts are quite apparent from the pleadings my clients are for individuals actually three living one deceased we were sued for one hundred forty four million dollars the tribe was sued for one hundred seventy five million dollars and the complaint alleges that the the tribe entered into a joint defense agreement so for years we shared strategies developed theories and shared research we were a defense team with a close working relationship on the notes to us while the tribe was in our joint defense agreement they engaged in private negotiations with the trustee which certainly they're entitled to do but they spanned a four to five month period and they reviewed hundreds of pages of documents we've asked for those documents they've never been provided the settlement motion was filed on april thirteenth took us completely by surprise and we were shocked there was no mention made in that initial phone call of the claims bar the settlement motion is myths that several of the legal issues in this case are issues of first impre and that it took the trustee a really long time to analyze though its rights and strengths and weaknesses of his case on the indirect benefit theory on a complaint that had been pending for years and that they drafted so we object we raised several issues we said look this indirect benefit theory if there are a banding and abandoning it we would like to see the investigation we specifically objected to the barring of our future claims and for the sake of but judge bormann in his opinion pages thirteen and twenty eight says he didn't have to hold the evidentiary fairness hearing let's talk about what what hearing was held and what hearing that you wanted that might be different i thought that there was a hearing that's been described as an evidentiary hearing on june twenty seventh two thousand and twelve it was a hearing the dr did you attempt to introduce evidence we crossed it was supposed to be a hearing on the merits of the settlement  attempt to introduce evidence that you were not able to that now you say this is the part of the problem we were sandbagged at that hearing did you attempt to introduce evidence it's not a hard question we cross examine the witness that was presented yes all right so i take that you didn't try to introduce  now you lose then there's a motion for reconsideration and then you want to know that i'm gathering you want another hearing we do want another hearing your honor why do you get another hearing in connection with a motion for reconsideration when there was an evidentiary hearing already on june twenty seventh that hearing the matter with that process that prop first of all the court that was the initial hearing on the settlement motion itself we anticipated that there would be a future evidentiary fairness hearing based on the sixth circuit precedent to mcdonald that hearing we thought would consider the for bankruptcy process of approval of the settlement it let me interrupt you for just a second in your pleadings and in your argument today there's lots of discussion about we were sandbagged we were surprised we thought we expected we hoped all this kind of stuff it's kind of hard for us to divine what you hoped and why we care so there was a here why is that hearing not adequate if you cross examine the witnesses and you had an opportunity and declined to introduce evidence the the wire get another the guarantee was the court was misled at the hearing below they were they did never brought up the guarantee until that hearing we heard the word guarantee at the hearing and thought what are they talking about which guarantee are they talking about it's from a separate transaction there pleadings below told the court did you ask that the hearing be continued because you wanted to look into something further we asked that settlement motion be denied we asked for a fairness hearing after hearing the facts just could we kind of focus here on your answering the questions of reframing the question and then answering something else did you ask to have the hearing continued because something came up that you were not prepared to address at the hearing there was no formal requests for german made as i've read the transcript however what was said on the record hearing we asked and why was this hearing not an evidentiary fairness hearing that's what i've been trying to answer to ask you for the last five minutes what was that if it wasn't that it was a hearing to consider the merits of the settlement the notice of the hearing did not how is that different from what evidentiary fairness hearing the hearing to because the merits of the sun would go to the for bankruptcy prongs of whether the settlement is meets the threshold under rule nine hundred nineteen and this hearing went way beyond it we expected this hearing to focus on that and then make a scheduling order we had no discovery that we had not even been furnished with the hundreds of pages of analysis that the tribe did i'm sorry that the trustee did so we had no discovery going into something called another country had discovered yes and had you filed a motion to compel if you didn't get what you saw we had sought discovery and it was not forthcoming and as you filed a motion to compel if you didn't get the discovery no your honor ok thank we still maintain that we're entitled to that fairness hearing was already an uneven playing field what happened is that after the fairness of the after the initial hearing that was held the guarantee went back to the office the word guarantee came out for the first time at that hearing and people started looking through the ten years worth of transactional documents to figure out what they were talking about mind you they told the court there was no basis for contractual indemnity but that's exactly what this guarantee was when we brought it up and it contains a waiver immunity we promptly furnished it to the court and judge bormann said no and he used a summary judgment standard both at the hearing that was conducted and in the motion for reconsideration the cases that he recites were summary judgment cases and he said he was not going to consider it any further and so that's why we're here your honour's if the claims for our order below stands the legal ramifications are significant they're large it would open the floodgates we believe to lit settling their cases and be able to get a claims for to protect them from contract claims that belong to a codefendant over their objection and for no consideration and that's what happened here that will seriously affect the way people conduct business in this country so we're asking that that part of the order below be reversed so that this case does not capture contract claims and also like this court did in the mcdonnell case this court should remain and here because the district court did not hold the  evidentiary fairness hearing and it said it didn't by the way in its own opinion said that wasn't the evidentiary fairness hearing and pages thirteen and twenty eight they said the judge said he didn't have to because he didn't feel that there were viable claims but he measured them through the questions i have a question if i may let me understand what you see as really is that the court find that the claims bar should be essentially river the mataram man did to the district court that claims bar was critical to the settlement between the red and geisha and traffic and the tribe therefore the entire settlement would  set aside then do you propose that and never dan tree hearing be held at some future point where your clients have had a full opportunity for discovery and my reading your request accurately yes however they have they have trotted out releases we they have releases that they claim were signed in two thousand and five it's not at all signed by whom by our clients in connection with the refinancing transaction that is the subject of the adversary proceeding the one where they want to claw back one hundred forty four million it is not at all clear that the claims power is in fact essential to the tribes financing that my clients are being sued for i say that right they said it but it's not at all clear because they also have release is that they put in mr matheson's declaration and said we've got these releases so if they've got those releases it's not clear why they also need to claim it's not clear to us why they're fighting so hard for this claims if in fact they have sovereign immunity if these releases they were signed in two thousand five we haven't yet been told to or actually paid back the money that was the consideration for those releases my clients are being sued for one hundred forty four million dollars where's the protection for them why are our future leaders being also the first time we've mentioned releases releases by your clients that is where they release all claims against the tribe in connection with the two thousand and five refinancing transaction and the money that we got  from monroe partners there was a release signed ok however if the money gets given back the consideration for the release is fails and the release is get on don and that triggers the guarantee obligations ok so you are saying that there are such releases and they were signed but you believe they could be on while they the consideration for them will fail if the if there is an adverse ruling on the adversary which we truly hope won't happen we've had to summary judgment motions pending for a long time ok now my question is with respect to the you're sort of first claim that contractual claim shouldn't be covered by the by the bar order if you prevailed on that whether you call it clarification remain on vacation or whatever but if you prevail on that conceptual point then do you still need the fairness hearing we believe we do  alleges that the payments made that my clients received benefited the tribe so they set up the individual i'm sorry the indivisible injury and in terms of the special relationship there's all sorts of transactional documents they do create a special relationship here that's good enough counsel you'll have your time for rebuttal thank you million dollars so that was a huge trunk of money that my client never see that they sued for under what's called an indirect benefit the guarantee goes to the heart of that in direct benefit here so the guarantee the central focus of the evidentiary with respect to at least that and that's because the trustee use theory that they could recover of this planet money that we never received was that when pappas and get serious received  it eliminated our obligation to guarantee the guarantee has never been triggered that's not in any serious dispute let me talk a little bit about the guarantee and then i'll talk about the second aspect of that here at the time that the guarantee was entered into in two thousand my client the tribe that contributed over one hundred million dollars to the greektown scene the scene of the bankrupt some five years later the guarantee therefore was very limited it would only apply if the tribe received distributions wrong because see no in future years in excess of an agreed upon floor that's more never came close to being met and that was why the trust be recognized after that was demonstrated to them that the case really was a six million dollars he's not one hundred fifty five million dollars and therefore we settled for about half of that six months and so that issue was a focus not only of the hearing but of the breeders counsel says that they were sandbagged first time they ever heard of a guarantee being an issue was when they showed up at the hearing o filed is second motion this one in the district court seeking approval of a settlement on the very first day it says this talking about this indirect theory it says this defendants benefited the tribe defendants by reducing their exposure on these guarantee indicate in his in his remarks it was specifically discussed  that is helpful mr al the bomb said at the hearing and since that time as mr beck won't testified our analysis of the indirect benefits we determine that the guarantee exposure didn't exist and therefore there was no indirect benefit because if there is no guarantee there is no reduction in exposure that would suffice under six circuit law he went on when he says he here in t v exposure that is the exposure of the tr so there is no if it has not been triggered there is no exposure they don't have a claim for the chunk of money that we never got and they have no claim to know if there is no exposure why is the tribe insistent on having that exposure bar by federal court action we are asking for what is a fairly climbin bar order that bars claims by a non settling defend orders having to do with contribution indemnity are fairly common but at least there are some authority both ways the generic bar orders that might borrow a lot of other kinds claim their whole basis and what they say is they don't have exposure and less they're obligated to pay it back in which case they can see indemnification from us through the contractual indemnification for contractual contractual debt it was unable to do so and there's the affidavits in the record to that effect because of the pending claims and it is believed by the tribe and i think probably fairly so that it needed a firm borrower to be able to go to the lenders and say look it relates to the two thousand and five france first we are back to we are done this litigation is oh well let me ask you this is obviously this is complicated and we're trying to figure out how to treat it conceptual if you had a situation where a person that a bankruptcy estate is making claims against wants to settle but says look in order for me to settle i need some money for more eugene my house and i've got a real estate fight going on and people won't loan me money because of that real estate fight could we say the bankruptcy could bar his adversary in the real estate fight in order to get the financing to pay the bankruptcy i mean conceptually that's the case the other side is putting forward and so i'm really ask things could they would it be up be within their power and then secondly is this case analogous to that hypothetical and i would say yes and no so the answer is yes it is within the power under  trying to point to make a point that's not this case this is not what the whole point is they were asked to come up and read up any claim you might get it is the borrower relates to and is limited to those claims that arise from or relate to the two thousand question a question about what you just said the bar of order language itself seems to say what you said in the first say two thirds of that paragraph but then it ends by saying these barred claims include but are not limited to any and all claims arising out of a go beyond what flows from the two thousand and five answer no i don't believe it does i think if the the last ones are just making it clear that that claims it was reasonably flow out of that those two thousand five france adversary proceedings and we're making it clear that it relates to the two thousand and five transfers but the tribe entered into a guarantee in two thousand did it not mean that guarantee got shifted around but the guarantee predates the two thousand and five transfer it does and so in what sense are the tribes obligations under the guaranteed flowing  from the two thousand and five transfers the whole basis is if they are obligated to return bonds to the trustee there is a provision that is essentially a paul back so they arise as a result of the adversary proceeding we don't there's they got the money so they're not forced to pay the money back leaders following up again he was never triggered it was there's not going to be any any claim unless they're forced to give it back so it arises out of the fact that they would be obligated to give it back be if the adversary proceeding by the trustee says those transfer of the fraudulent the trustee gets them back yes at which point they want to be able to go against the tribe on various my colleagues and the further so say you do argue that the bar order includes both the first clawback the transfers them selves and then any subsequent litigation involving the way that they have a claim of the guarantee arises out of the claims and the adversary proceed if they are not obligated to return those monies in the muck to adversary proceeding then there is no claim under the guarantee even if it had been tri so again we we sort of have this potential disconnect or analogy that if i have a health insurance contract from two thousand if i need to her transplant and then the insurance company is related to an insurance person to a bankruptcy in two thousand and five can you bar me from getting paid for my heart transplant would you say again i take it you say the court has the power if need be yes and that's because in order to settle a bankruptcy the court has the power to bind trinidad and tobago yet again they got the money they're sitting with the money they don't have a claim and a guarantee it only arises if they are forced to resend ok can be done if you want but i do have to have a have just a couple points of the motion to reconsider but i will i think i think we probably understand that but  go said that the guarantee was never mentioned in til they were present at the hearing and mr cowen referenced a couple dates and i just wanted to correct that originally the summit motion was filed in the bankruptcy court subsequently the reference was withdrawn to the district court it was in the bankruptcy court on may twenty ninth in our first page of our brief that we referenced the guarantee and this indirect benefit theory that i get into and june twenty first in the district court briefs we again raise the indirect benefit and specifically call out the guarantee in claims under the guarantee and the hearing in front of judge borman in the district court they have an entry hearing was on june twenty seventh so there was at least a month that they were at least aware had they read the briefs and i assume they did they responded to about the guarantee but the fact of the matter is the reality is that the guarantee has been at the very heart of this adversary proceeding since its inception in may two thousand and ten and i find poland's argument that they were unaware of the guarantee singularly incredible we basically argue that that they got the hearing that they were entitled to and they already knew about the guarantee so what's what's the big problem but how do you account for the language the judge borman used in the order where he on two occasions says he doesn't need to have an evidentiary hearing i actually have difficulty with that language but i think how i interpret it is that the evan entry hearing is a requirement under this court's mcmahon and decision and pronouncing it correctly only where you identify a claim and therefore you need an evidentiary hearing to determine what the impact of a claims bar is on that claim judge foreman ruled there was no claims they so they kind of want to have an evidentiary hearing to a dead if i claim as you say they had to have done that at the june twenty seventh hearing and failing that they don't then get in a separate evidentiary hearing is i think that is exactly right they have an obligation to come forward they can't just sit back and throw spaghetti against the wall and hope something sticks we have a settlement settlements are to be encourage claims bars are common where there are multi defendants and you want someone against one doesn't do much good no one will be incentivized to settle the other defendants are still coming after you and to judge boggs point i think that there has to be a nexus between the claim and the claims are so the bago argument i think is maybe a little too broad but my point is there's there have to be some mutuality in other words the parties claims are being barred do they have to get something out of it or can they just simply be left high and dry well i don't think they were left high and dry if they don't come forward and have a claim if they have to identify claims and get an evidentiary fairness hearing and determine the impact and i don't think they're left high and dry but i think in the first instance as a predicate to come in and show something you can't just sit back and say well we may have claims we don't know but we've been in this case for two years and we've had the guarantee since the year two thousand and we haven't considered whether or not you know we have claims against this other party we haven't filed across claims we haven't filed their party claims we have failed counter claims but oh by the way we want to tie this up for some infinite number you know days and no one knows how long because and therefore you know stop a settlement because we might hypothetically have we don't know claims that we should have decided you know these aren't perspective claims or no facts that are going to come out that they don't already know about so so there's no prospective event that's going to trigger  a sudden claim under a guaranteed they they knew or they don't and they have a notation directly where the settlement i guess because of these appeals still hasn't go through gone through the tribe hasn't paid the money the estate has and gotten the money that is there any other questions from my colleagues thank you thank you you have your two  discovery we've had motions to compel motions for contempt we've been stonewalled tell me why simply you need discovery to determine a claim that you have because while the events may have occurred long ago we don't know the facts surrounding them the had different rights they chose this path as opposed to a different and may very well have been damage fraudulent concealment if it occurred has a two year statute that hasn't begun to run yet we haven't seen anything yet so we do need to finish oh so you're saying there might be fraud but you haven't you don't know about it because otherwise then the time would start to correct we don't know if fraudulent concealment has occurred if bad information was given to the gaming control board that caused our clients to take this transaction as opposed to force the sale of the casino which they could have done under a standstill agreement from february of two thousand and five that would be fraudulent concealment our client could be deeply harmed by this second point they say the guarantee goes to the heart of the on on your assertion that that you don't know what claims are and let's assume that you that you don't know the theory upon which you might have a basis of recovery but you surely you know whether you have have or have not been injured if there's been no injury who cares what potential claims are we've been injured to the tune of one hundred forty four million if we are have forced to give back the money i suppose if that's the answer to your question but we don't so this all arises out of different theories under which you might be able to recover the hundred forty million if you're required to pay it back that's what you want a hearing for yes we believe there's a contribution and an indemnity and that all of those facts need to be developed but if you're required to pay it back at all arises out of to proceed it right if the adversary proceeding arises out of the muck to proceeding yes so i thought all along the problem here was not the bar order with respect to the claims arising out of the mufti percy but rather the fact that you were contending it was too bro it went beyond that to include other claims and that's not fair it's both we do contend that it goes beyond that to to cover contract claims which is not fair but even in the context of the the adversary proceeding we have the non settling defendants there trying to impose a claims bar on us over our jackson without any consideration or protection whatsoever which in the laws of this six circuit in the chain do concede that it that at this point you have not a den a fight a claim an actual claim not to forget the forty four million dollars based on what we but the guarantee would be one even though the floors of the guarantee have never been met that's that's an issue in dispute we've not seen the investigative analysis we don't know that for you have any do  you have any evidentiary basis other than just supposition to say that the guarantee is true discovery is ongoing i think standing here today i don't think you have any evidentiary basis today to say the guarantee has been