ning to be handed what are the key issues that need to be resolved can those issues be done in one brief or two briefs for a tickler side what's the word count that we should have for the breeze and i should tell you at the onset that we are inclined to stick with a fourteen thousand word limit to certain circumstances that exist i think is your honour's are aware there's this was a trial that took place simultaneously both and delaware and in toronto there have been independent appeals that have been taken both here in the united states as well as in canada the status of the appeals in canada are that a request leave motion for leave to appeal to the ontario court of appeals was denied management of the matter about two weeks ago all of the parties to the peoples in canada approached the supreme court of canada with a stipulation asking that briefing in the  llate process before the supreme court of canada be pushed out that briefing which was due in early september shout to november thirtieth and the request was made on the premise that the parties have been engaged in an ongoing mediation process i think the court may be aware of that is being supervised by former judge just foreign in and all the parties that are present have been participating in that mediation in one way or another  for the better part of eight or nine months it's good that the mediation is continuing and in fact as we sat together just a few weeks ago the i d of having a substantial better pray in canada with respect to the appellate process there was to this group an obstacle to the continuation of the mediation and the opportunity to try to settle the case so a stipulation was signed and a request was made to the supreme court of candidates who would journey out and or provide a stay of the briefing schedule and that request was granted by the supreme court of canada so right now the briefing in canada is being held in something only a lawyer could have thought up if we deliver anyone delivers an impasse notice then the clock starts running with thirty days to the next filing no notice has been has been delivered in advance of this mistake at this point to start the briefing with respect to the third circuit appeal we recognize that that is not the normal course that would be taken but we do think that there is  some basis to see this being a fairly unique situation the parties continue to be meeting with each other there is progress being made our hope is that we will be able to resolve this without having  rule or for the supreme court of candidate rule we are pragmatists we recognize that that may not be the case but we wouldn't be standing here today in open court telling you that we thought time was needed unless we thought it would be worthwhile  now with that your honor there's in particular we talked about a specific timeline which is that we would in effect put everything on hold in the third circuit until october seventh which is roughly a month from today and if we we believe that by october seventh we will either have a resolution or we will not and if we will not then we will be able to move  forward we have had specific conversations with counsel to the canadian monitor about a similar type of stipulation that addresses a very specific issue that faces us here in the third circuit which is  the ability of parties to move for an extradition of the appeal that process would under local rule required to be made by friday of this week the ninth and so we have discussed the framework of a stipulation i think we're instantiate agreement on that form which would allow the that right to be in effect preserved where the parties would agree that if the canadian monitor or any other party in fact it to move to expedite this appeal and they did so after the ninth of september that no party would then argue that the request was on timely and therefore should be denied solely on timely describes so that i think is are the two bookends of the situation that we face ourselves with you know it is it is a been a long process there's no question and the parties have been working hard to try to resolve it we don't have resolution yet but we do believe that if the court does grant us this additional time that it will be put to good use and we're cognizant of the fact that when we went to the supreme court of canada we talked about a extension through november thirt and that when we're hearing from the third circuit we're talking about extension through october seventh that is because i our view is that the issues have narrowed and we have a sense of whether it will happen or not happen and it will be something that will  in the relative near term and so our view your honour's is that putting everything off for a month would be a prudent and appropriate thing to do under the circumstances to allow the parties that one last push with the help of judge  to try to get this resolved peacefully service because you can save it for so long but you know obviously it's in the discretion of the court to tell us what we should do and with that i'll i'm happy to start talking about the other issues but i want to put that on the table thank you for the report you address one of the subjects that the two of us were interested in pursuing which was whether further discussions among the parties to sort of dictate their own destiny worse worthwhile and i'm happy to hear that you're all working together is that so you check that off my list is obviously our goal here is to figure out the most efficient way to get the issues in front of the court i think appropriate time  this is in my view this type of situation is the kind of thing you'd like the parties to to call on their own you're at the point in this case as you know that you should be dictating your own destiny i would think that your judgment and together reach out for in another's i'm sure you will hopefully reach that goal but if you don't this court has granted that unusual request to allow to bypass the very evil district court judge who would have i'm sure studied all of your issues and come to a conclusion that he thought panel in the most efficient and smartest way more is not necessarily better we've had a chance obviously to peruse you very generally what you needed to do this record on and neither of us have a view on who's right who's wrong we simply can see significant overlap and we're looking to find a way if we have to decide this to get in front of the panel efficiently and since you're also now asking for an expedited appeal  rather than having another case management conference let's try to agree today or very shortly after today as to what are the key issues is it possible that they can be briefed in one  realize that's hard i've done it in bankruptcy remember the cardinal case was fifty nine aircraft carriers here so it was very tough we had two of us with the power of the pencil even then it was tough but it can be done and it certainly is a to what should be in the record there's been no dispute and when i look at the issues having read judge gross's comprehensive opinion it looks as if that there's some overlap between them so that consolidation and subversive plan have certain elements that are common the authority and allocation have certain elements that are common and i think the violation of due process probably trails in terms of importance so you know in terms of what we have been talking about from our side of the table it's largely been kind of the five that you listed one and two together and three and four together with five this we think it's only scorning and subs that consolidation everything kind of leads to that i think the other issues are ones that are important but you know for many respects that's that's kind of the focus we have not had as an opportunity to sit down with our our colleagues on the other side of the aisle to go through the issues but i suspect that they're probably similar in the  view the allocation theories are you know really in terms of ownership and ownership is a term that is used in both camps to speak you can't allocate things that we are winning and you can't sell things that we found was snowballs going kind of overwhelmed with all of the various overlap that he saw we appreciate their owners and so in terms of work out kind of skip to that point at least from our side we're fine with the limitations in the rules we terms of one or two briefs parties in the room but there really are only two sides of the story and so you know our view would be that we work is as closely as possible with those on our side of the aisle to make sure that the issues are not duplicate if you don't have several priests that say this and this and this about all scorning and that and that and that about allocation that they are that if you have that the court would have the opportunity to read one set of papers in effect it might not be one brief but what we were thinking team exercise with witnesses and issues at least from our perspective i think it would be achievable obviously i haven't talked with everybody at but i i appreciate the the the  having said stood in front of judge stark and seen the piles and when a question was asked you could tell that the first question was which pile hold on a second that's not what we want here we want this to be clear and focused if it has to be argued and right on point that's the idea of having too much material here i think is something that we very firmly agree with how close are you to being able to tell us whether you can consolidate the issues into person i would say a week simply because of the holiday weekend and everybody's finally back together i would be safe get a week and then once you have that is  would like the opportunity to work to consistently i've said this before a number of times the best legal writing that i see or petitions for rehearing and back before a court because you're limited to fifty pages probably will be a half an hour side you can divide it up any way you want no two people can speak on the same issue now anyone who knows me knows that i never abide by the time limits we always end up going over the bankruptcy issues the sub con rose issue due process we think those are issues that can fairly be handled in a single brief when it gets to the question of allocation we think that's a far more complex issue because you don't just have two si pointing in opposite directions you have multiple size pointing in multiple directions your different peers and there are different theories there is ontario law under the ownership theory there are us law with respect to contribution there are equitable principles we think in that particular area having a single brief is going to be an understand of interest was beyond that your honor we do share the general view which is that anything you can do to move this along expeditiously and efficiently would be good we haven't landed on the spot with respect to the question of whether using the prior briefs would be beneficial for the court even if the prior briefs are relied on by the court we do think it would be beneficial to have the parties at sitting in the district court and disrespected on that when we saw the petition and saw what took stark was faced with our inclination was we need to bring some order to this so you can get what you want which is a resolution and so if there is any inclination that all you would do is just change the color of the cover sheet and send it our way that's not what we have in mind as i mentioned already we are looking for a single reason i do have a question about the allocation concern particular entity that thinks they're entitled to a portion would do a submission that's what their position i mean like that absolutely ari goes to the question of the contingent cross appeals so on the appeals on whether revenue slash'em should there and you have the canadian debtors arguing for ownership theory under ontario law i think in that particular area each party's going to need its own voice to make that argument because at the very same time that i am supporting the ownership theory and while i am joined with the media debtors with respect to supporting judge gross's decision the media debtors and the canadians that errors are essentially attacking each other with respect to their theory of allocation and it's for that reason on the contingent cross appeal that we can't be joined up and we each need to advocate our own theory with respect to to the allocation you use this word contingent cross of people are you saying are you using the word contingent because the court would only need to reach they would respond to those respective theories that's my understanding this may be applying something from my old days and i don't know if this is doable because i'm not as conversant in all this there simply again looking for your suggestions of a way to get this before the panel in the most efficient way and the easiest way they can do almost the counter point counterpoint so that you don't have which requires adding sort of thing and i think we can go back again and with your honor's guidance of simplify and direct and efficient and effective take another crack at trying to be as direct as we can about the allocation parries it's just on the question of can we get it all into a single brief on each side with respect to some of the issues today september fourteenth how you propose to divide up the what issues you believe need to be grieved and who will primarily responsible for words i don't know that they need that extensive length but i do think that there are two components don't one advocating for your own position and second responding to the positions of the other parties at the same time so i don't know how much shorter we can be on that with respect start i don't think there is much beyond what we've agreed upon but the record for both is the same record and is the record and i was we were really trying to just get a sense when i looked at the district court docket there were designations by the parties of what the designated record was on and that was just sort of a spot check on on the docket is it four hundred pages or is it ten thousand pages so it certainly is in excess of ten thousand pages and so you believe that this these legal issues are going to require a drilling down on the facts there's not a stipulated factual record that we could come up with here to do that you may have different legal theories as to whether ownership or contribution revenue  proper barometers for measure but are you saying that there are fact issues such that the panel we need to weigh in on this very month iraq and while there are a number of legal issues there are a good amount of issues that are mixed issues of law in fact and this is not based on a summary judgment record it's based on a six week trial two jurisdictions extensive factual submissions extensive expert testimony on the submissions i don't think that this is a record that we can garth wilson on behalf of the pension benefit guaranty corporation i don't have a lot that i plan to say and i just wanted to clarify some things we stand it in a little bit different position from from some of the others here negotiation and i can first see a scenario in which it may be that giving october seventh that not all the parties here who are part of the appeal talks i would ask that also of the parties suggest the grieving schedule at that time so we can wait till after october seventh for that but i don't understand allocation that have been put forward by the various parties and the briefing process we went through bolo was great helpful i think i think it's quite correct that we can slim it down into the middle i eliminate a lot of the repetition but i do want to echo w the ways in which we approached the allocation issue and respond to each other almost impossible to work together on and this is a group that is very good at collaborating we know each other very well from over the years so i guess i basically want to make sure that if we  t agree to assign particular allocation issues to particular parties i want to make sure that we will have an opportunity to explain to you why before you rule long the briefing process up because i think we'll be able to show you why there are issues in which we're in conflict that ought to be presented separately on that talk of them that could be done right around october seventh if you find that there has not been a settlement but for example to just say that there's the canadian group espousing the ownership theory about occasion do i need more than one brief with regard to why homeownership theory is the theory to follow probably not i think that would be integrated with their critique of the other series and indeed of with their particularly their response to their palance arguments because what we found in trying to coordinate below is that the way the way the us would be and yet canada respond to the us arguments is quite different and i integrated with their alternative approaches and that's why we found that we couldn't really collaborate on those issues in brief i think that's different for sub con so grows a plan some of those other issues you identified but on the core allocation issues the question of the merits of which approach to take are closely integrated and that's why we have trouble collaborating on that and and i guess i want to clarify when you're talking about the word count when you're talking about maintaining that work out for all quite feasible to do that at the moment there are this this number of separate appeals that haven't yet been consolidated and i think technically that the limits would apply in those separate appeals we all want those to be consolidated i'm sure about having to and i guess the other question was when you say who would be responding were you it was your concept to designate particular parties to address issues or really let's say you just have the issue pick pick an issue so there was a plan repellents that's not to say we won't all get together and you know and agree because i do believe we've worked cooperatively and we will do so i just want to let the court know that there are some differences there that we'll have to resolve the process  are challenges us the court has heard if we can discuss those them ourselves and report back to the court i'm personally skeptical that fourteen thousand can cover all of the main appeal issues but again that's we hear the court's desires and we can discuss them ourselves thank you very much i would ask that counsel if you would get together with the reader or the clerk's office outdoors and have a transcript appear of this case management company thank you everyone for showing up today