if those risks are realized and both parties are harmed it was not offended because those parties accepted those risks when they went into a risky sale but if the risks in that sale realize and they harm employees who were not informed that these risks were coming down the pike then those employees are going to be harmed and they will have not had a chance to consent or to prepare themselves should be and has work farm for twenty years as reasonable for some ability that is subject to an objective standard not the subjective assessment of management but to object numbers since very difficult but many just put it this way your honor but say you're a roulette table and the ball is in the air and it's spinning around and it can land on red or black is any of those two probable one against the other but they are both reasonably forseeable because there are two outcomes and one can be drastically different from the other kind of both of those outcomes are in play and  cannot tell which is a going to be when this company ran out of money which was protectable would have its employees and its total with eighty elsewhere at that point you have to give him notice because the possibility of sensitive to the commercial reality that sending out that kind of notice has an effect on the work force and the continuity of the work force on business partners on good will in the marketplace i know we're the willful in that situation typical practiced routine operational practice in america is to give a need and worry now to that workforce and let them know that we expect may wind up running the risk that any time there's a chapter eleven filing one of the mission of the person it's going to have to be assembled and that following will be a notice to all  liquidating sale and the financing is in the bank and the employees have been given agreements to join the purchaser i would not send out more notice and i and where i read it is certain that certainly is not the sale was approved by the bankruptcy court the suit of a dead end dated february twenty eighth the last date of the a p a ok my question is under circumstances like that do we always want to have a war date appearing and no way to determine when it will come and the answer is yes ok when buyer has made no effort to hire anyone i think there is a huge is a strong warning that it should be shouldn't get into somebody because of the track record of indeterminancy of the financing of this buyer with this particular amount of money from the source which was the crime in which for six months had been it's the status thanks financing there's a race if you were wrong why then looking at specific facts of this case and that history of business dealings isn't there enough looking through the lens of given us in february it was no longer clips it is managers who are in charge there was someone named ken queso who was the application of all the creditors the person to decide whether there should be a layoff he said immediately happy to go ahead with the sale even though he was told seventy five percent of employees would be let go this was in november he said but we're going to take it anyway so his sense about a growing concern sale is is one thing but a to me that  o'connor let me start i had intended to start with what the circumstances were in december of two thousand and eight that was facing the debtor at that time but frankly judge crash you summarized it very well for me what the situation was that the company had already filed for bankruptcy so it was in bankruptcy at the time it it had this is a religious asset purchase agreement case this is not really the circumstances that would rip up the presumption that those cases are referring to with respect to the testimony you think you find that the testimony is a little bit conflicted bad i business circumstances here and at least at the point where i the board wanted to speak with him with russian counsel and get some understanding assurance of what was going on and wasn't permitted to do so at that point  circumstances that took place between essentially february one and february twenty first when the conversion motion was filed by the security holders that explanation of what was going on in russia at the full board meeting on february third and then february fourth this interested directors to me they make a decision not to convert to a chapter seven they also make the statement in the minute on in moscow and in fact they got that specific documentation on february fifth the next day when they got a letter from one of the russian regions who was involved in the sale transaction and talked about the decision  made to recapitalize the bank and reaffirm the decision to go forward with me this particular project and to fund this particular project you don't find anything further from a disinterested directors until february eleventh whether or not this closing is are going to take place because of the possibility that this russian company i think ought to rise i think that when you look at the record what you see if we have a situation where there were the course of time and even a relatively short time there are increasing doubts and as a as a business reason the other side has the money wanting to hold on do we look at that to say well that's that's commercial judgment and so that that should inform whether this is reasonably foreseeable commercially reasonable is the court that is making based on the information that it has a decision as to when it becomes commercially under reasonable to hold out hope that the sale is going to close and i would suggest in this case that sun indication of that came from the fact that he secured no holders when they filed the motion to convert the case to chapter seven  you read the motion that they filed they said that it was as i believe they said that we were twenty one when it became probable to them that the sale was not going to close and up until that point i think the issue really was when is it going to close how much money is going to be made available at what time and that's really what everybody was negotiating with w was reviewed and for clear or frankly i think that the standard that you have because it was a summary judgment motion that was granted his plan or it is yes and i tell it if i were to tell you a fact that i thought that the bankruptcy court got it wrong i would tell you but i didn't think she got any of the facts wrong with it i think that this record got it wrong but what we have faced with disciplinary review said it's not just a question honor i can't speak to the exact procedure that was being followed in in russia as far as a loan is concerned i know what the events were bad happened but i don't know the reason that they happened i do know that at least as of time the s exactly who got involved into the decision making it is not clear to me i think it's not clear on the record but i don't think that as a business and sitting from the outset looking at  this going to end to enter into what was going to happen then they felt that that was something that was necessary to the process because they had already had a commitment letter i think the problem there was the unexpected i don't believe so because actually i believe that the foreseeable but the reasonable for c ability is an objective test so it is really the looking at the facts of the case to make a determination as to whether or not it was roulette if he is on the red which causes doom to occur and the employer says we thought it was going to land on black you wouldn't occur it imposes a burden on the blanket to prove that sale and for no more pupils were necessary the rest of the sentence which the court did not quote was that it could we could not predict a specific closing of the question and could not predict a specific closing that was  colleague the reason the company closed not because they're black or red the company walked away from the roulette table it gave up it threw it in its chips and it fall through liquidation because and it took its employees in that twenty possibly have been predicted to have occurred smoothly because he'd just been through a track record with a lot of me with whatever he committed could not necessarily counted on and therefore it was incumbent on the company to get they know the depth point and certainly when inter came to the table and they handed said we have no money we don't know where we're going to get it at that point it was profitable and it certainly was when it was said that it was january twenty nin twenty six this twenty seven days the defendant has never said what the unforeseen business circumstance was in this case the defendant never said that the failure to come to the closing was the unforseen business that funding was coming and that there would be a clear closing date he said that on february second that is a clear commercial judgment and he was never given that and he disregarded all of what was said by people who were subjective and insiders and he said until i get that i am shutting this down here every benefit of the doubt to use up the money that was in that bill to see if we can get there and that was prudent business judgment as well but someone