assignment which oftentimes is a required part of a sale i mean here three hundred and sixty three of the bankruptcy code pertains to sales and does not move this appeal of an assignment order under three  five or three deprives subject matter jurisdiction there are many issues before the court on this appeal and in respect of time i want to focus on just a couple key issues st because remedy limitations were waved and a stopped and this appeal is not mote rd as to the cross appeal because the bankruptcy code requires similarity for assignment the bankruptcy courts unchallenged that is but that is one of the potential issues and it ways that this court can rule in our favor but one of the pieces is that the assignment here was not a sale we certainly acknowledge it an assignment well i think what we do is we look at what does the sale say and here the sale order defines a separate independent process in which you know transform is a part of their consideration accepts the risk that an assignment can be rejected that that what they're purchasing is the designation right they're not actually purchasing the actual assignment of the lease the person seeing the designated right and that the bankruptcy court was emphatic on this transform order also refers to multiple times to this does it nation process which actually is what is actually in the sale order and the asset purchase agreement and so when you look at that and you know judge drain who drafted those orders was emphatic that this is an outgrowth of the sale it's not actually part of the sale it's simply an outgrowth of the sale and for us to have to have you know seven months later somehow appealed the entire sale order just for this particular assignment defeats actually the whole purpose of this separate designation process i don't know if that's true because one of the purposes by now or means kinds of situations and i happen as a result of the of the sale and yeah absolutely and what was part of the sale and allowed this to move forward was that the sale was complete the sale was complete which included the designation of rights and that was complete they had the right to well if they were moving to put another straw in there which you know within the lease agreements there's a notice requirement and the mall could have then sought a stay again to you know raising the equitable  that went back and looked at the transcript and you were very concerned about it back even when the bankruptcy judge asked them are you going to pursue this later you specifically said you know what he said right that's good enough you said well if it's jurisdictional the court can independently review this even though they're saying they're not going to raise it and so it clearly was in your mind that you could be in this exact situation but you still get an appeal and so i'm just curious that's a that's a very good question and what happened is you know obviously we didn't think that this was part of a sale but boot and suspenders were worried about this argument being raised and we didn't want to raise it because almost all of the cases cited for you know for the other issue the crossbill issues they addressed this issue as well and so we knew that it could be a potential issue we didn't think it applied because this is an assignment order clearly a separate assignment order and separate from the sale but we raised this issue to the bankruptcy court and then the bankruptcy court was emphatic and transform agreed with the bankruptcy court repeatedly that this was not an issue that it was not going to be a raise of a piece on appeal and so because everybody agreed that this was not a sale there was no reason to to appeal the the lack of a stay because three  we peel back the surface of of whether or not what that jurisdictional label means and the supreme court and even this court has looked at you know we can't take those at face value we can't take the use of that term in face value so if we peel back the service and look at the history so west point you know states that you know we've said on no ambiguous terms that section three hundred and sixty three dollars m is a limit on jurisdiction without much argument into whether or not the statute itself but simply cites to sites to gucci whereas you know gucci and turn you know also doesn't discuss it in this context of whether or not this is the type of statute that can be wa turn is kind of the st case in this and so to one decision where salerno doesn't talk about it as being jurisdictional it talks about whether or not again under the circumstances there was a sale this  there was a sale that was being affected that had already closed and the question was can we hear this appeal of a sale and or is it moot and the court determined that because of the statute it was moot they were actually which is that are we able to provide relief the requested relief if the court is not able to provide requested relief than the then the case is moot and therefore d it has no specific circumstances which then can result in that particular appeal being rendered moot because the court does not have the capacity to render the requested remedy here's the the larger piece is that the default is that a statute is not jurisdictional unless congress says otherwise and the supreme court has made that clear and i was relying more on the supreme court's use you know circuit actually analyze this and looked at whether or not the statute whether or not congress define this statute as jurisdictional or whether or not it just simply has your sectional implications and so in that sense i mean i think both cases apply where you know the default here is that a statute is not just external and i asked congress says otherwise d and they didn't say otherwise in there in the statute there's no indication otherwise and in fact the statute itself you know implies that that there is an appeal because it talks about you know on an appeal of a sale order you can't have a sale order if there if they don't have to if you don't have jurisdiction to hear the  similarity the bankruptcy court found the opposite they found it undisputed that there was no similarity transform did not challenge that finding out appeal and that should be the end of the story i mean congress added the special protections for shopping centers they're very considerate in that and they add those protections and that statute must have meaning thank you th in the distress that's presented and the risk that's put on the buyer where there's effectively a rapid and chaotic process and a buyer is buying assets with no recourse and doesn't have a real ability to obtain provisions or meaningful representations and warranties and won't have the actual ability to sue the seller if something goes wrong under the asset purchase agreement and what congress did to encourage buyers to bid higher value in bankruptcy cases is in three hundred and sixty three dollars provided that those assets would be purchased free and clear of liabilities and that there would be phonology and freedom from litigation as a result of the  purchase i think as a court has appreciated that the appeal presents an important issue of jurisdiction that will have a significant impact on future bankruptcy sales because it's critical not to chill bidding or have buyers u se potential pelt with a geisha or jurisdiction as a means of reducing their price or even worse perhaps chilling bettors altogether so turning to the jurisdictional issue we have submitted that standpoint because that is your st stop will not apply but i'm just curious what your response is yes i think that if you look at the transcript and i'm referring to a four hundred and forty one through four  we don't have a transaction and we couldn't rely on three hundred and sixty m because of the transaction to the subtenant so and this goes a little bit to judge one hears question about what kind of mood mr are we talking about and what do we mean by when i read reviewed that transcript i appreciated knew that judge drain was really asking about what we call equitable mootness which is if we had sublease this space we would then argue is what many courts refer to as statutory mutinous and so i think there was a bit of confusion before the bankruptcy court on that point now obviously the record is clear that we raised this after the district courts initial decision but we did so because we came to appreciate our mistake of law and wanted to point out to the court that we thought there was a jurisdictional question expressionless sense as having not prevailed before the district court it was likely that we would be appealing and we felt it important to present the issue on a rehearing so that this court would have a full record on the three hundred and sixty three dollars m question and the district court did review the gucci case and the west point stevens case and ruled that she was in the nd circuit that when the nd circuit used the term jurisdiction to define her appellate power that it meant it and that she was therefor six and it talks about the difference between congress conferring jurisdiction and court rules and the like which actually got picked up by this court in two thousand and fourteen in the case of in rules promulgated by the courts not primal but it is by congress and the district court even noted that in a footnote in her decision if there is a significant distinction when congress enacts a statute that affects the not stated and i will speak to good faith in a moment but the standard that congress put forth means that the district court and this court lacked the power to grant effective relief and therefore we submit that  it is correctly analyzed as a jurisdictional statute and that the westpoint stevens discussion of it which in my reading is relatively thorough big o through the policy and the history and they do in fact discuss  jurisdiction and that is different from a procedural rule which might suggest that an appeal has to be perfected by a certain time and that time is missed that that could be something where the court could still take up that's the way i read in depressed so my argument is that under the case law that applies here including the supreme court cases because congress enacted three hundred and sixty three dollars and it limits the power of this court congress confers upon courts in cases or controversies jurisdiction and so here when the when congress said in three hundred and sixty three m that this court cannot enter an order affecting a sale thank you i do want to highlight just on the good say point that and i think judge bianco read from it that this is from f p a seventy three paragraph three where all of the findings of fact and conclusions of law on the sale order  incorporated to and shall applied to the designated lease with full force in effect and that the buyer is entitled to all of the protections set forth in the sale order sailor of course had i think four different references to good faith findings and also specifically referenced section three hundred and sixty three m so i think not only did the orders taken together demonstrate that this was in fact the type of sale that should benefit from three sixty three m there were findings of fact that transform acted in good faith with respect to the sale and there's a nd duty case that talks about buffet and it addresses the real purpose of good faith which is to ensure that the buyers don't act in such a way as to suppress the price or collude with other bidders to cause negative pricing or negatively affect the sale it's really a debtors type protection  point from our standpoint is that the lease in question here had a provision in it that said after fifteen years a major operating period expires and that there after the store did not need to be used as a department store it could be leased it could be taken dark and it could be assigned and the lease provided at that assignment could occur if the party to whom it was assigned had met equity or assets in excess of fifty million dollars and so we've submitted that based on the evidence here including the bankruptcy courts reliance on the lease that the court did in fact conduct the proper analysis under section three hundred and sixty five b three and that the lease is something that was appropriately considered within the terms of the similarity finding and at that should have been given as it was by the bank to court a contractual commercial finding consistent with the way in which adequate assurance  is analyzed by the bankruptcy courts with respect to the other provisions in section three hundred and sixty five dollars b three so that that point the lease and its change is significant and was appropriately considered court should either reverse and render decision and transfer the same or based on judge trends reasoning or remanded to the district court with instructions for her to affirm judge trent decision from the that you can affirm for different reasons i've i've had bankruptcy appeals where in setting not in this circuit but in the rd circuit where in a situation like this the circuit court is comfortable between the bankruptcy courts decision and the district court's decision that the record  appropriately developed that they can render a final decision and not cause further process in the very busy courts of the th district of new york and out in white plains where the bankruptcy court here  that supports the baby one million and if it is is that enough yes i think it is enough and the reason why i think it's enough is because as you mentioned we did submit what's called an adequate protection package this is quite normal in a three sixty three sale case to provide landlords with a financial package and that was in the confidential supplemental appellate record i had to use the documents make no representation of accuracy the that yeah and i think we we argued to the bankruptcy court that that proved that we had two hundred and fifty million and and and value because that's what is in those financial statements and he did not accept that what he did instead is having presided over the case  including the sale process and other issues that involve transform who paid over one billion dollars for these assets and he knew that to be able to do that they had borrowed certain amounts of money and so i think from his knowledge and experience of the case he concluded that while he would not find specifically what the value was whether it was fifty or seventy five or two hundred and fifty but th he concluded that that provision the fifty million dollars provision was satisfied based on his knowledge of the case and presiding over both the trial and other aspects of the bankruptcy case which quite normal for have follow up questions as opposed to regard to the legal versus equitable issue that was thoroughly discussed before the bankruptcy court in the state hearing it was made very clear i made a point of making it very clear that what we were concerned about was the legal move as the effect of three hundred and sixty three and that was very clear and the cases that were you know presented on the on the issues that are now before us on cross appeal those cases also discussed three  dollars so it was it was before everybody and the court was clarified on that and there was no distinction made from transforms counsel you know concerning about that so yes the judge did start and was originally concerned with the equitable business was there another tenant that was going in there but we clarified with the court that we were actually concerned about the statutory potential statutory movements issue  that case a court kind of court interpretation is more similar to a rule than it is to what's actually in the statute as you said the statute itself explicitly implies that there is an appeal because it starts out with the reversal or modification on appeal it doesn't say anything about removing jurisdiction it just simply says that there were maybe remedy limitations if those remedy with limitations are waived then we don't even reach the moved this issue  as to the cross appeal going to the cross appeal the lease the lease does have certain requirements and that is covered by sub see which says that the it that that any assignment must comply with the terms of the lease and so that's already addressed and so some paragraph a which is the similarity of crime must mean something different it has to mean something more the general requirements of adequate assurance of compliance with the lease cannot swallow the specific statutory requirements defined in the statute and then i say i'm out of time so i'm just going to leave the other issues unless you have further follow up questions