Kupperstein v. Schall ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1472
IN RE: DONALD C. KUPPERSTEIN,
Debtor,
DONALD C. KUPPERSTEIN,
Appellant,
v.
IRENE SCHALL, Personal Representative of the Estate of Fred
Kuhn; and EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES,
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Thompson, Circuit Judges.
David G. Baker for appellant.
Roger Stanford, with whom Moses Smith, Markey & Walsh was on
brief, for appellee Irene B. Schall.
Paul T. O'Neill, Assistant General Counsel, for appellee
Executive Office of Health and Human Services.
April 22, 2021
THOMPSON, Circuit Judge.
BACKGROUND
The short story, sticking with only what is relevant
here, is that years ago, Donald C. Kupperstein, with the help of
his comrade, Thomas Sheedy, improperly entangled himself with a
piece of real property on Reservoir Street in Norton, Massachusetts
and lined his pockets with rents from various tenants he
installed.1 In re Kupperstein, 943 F.3d 12, 15-16 (1st Cir. 2019).
That property belonged to the estate of Fred Kuhn (the estate is
now managed by Irene Schall) and that estate owed a debt to the
Massachusetts Office of Health and Human Services, better known as
"MassHealth."2 Id. As a result of Kupperstein's disinterest in
relinquishing his claim to the property, all of these parties ended
up in Massachusetts Probate Court, Suffolk Superior Court, and
Massachusetts Land Court. Motions were filed, orders were entered,
and, where it mattered, Kupperstein lost on the merits.
Ultimately, the probate court voided the property's transfer (so
We have previously detailed the made-for-TV movie about how
1
Kupperstein (who remains licensed to practice law in
Massachusetts) and Sheedy duped the only child of Fred Kuhn, the
property's owner, after Kuhn's death, into selling the property
for a "pittance" and both ultimately ended up owing a lot of money
to the Commonwealth of Massachusetts. See In re Kupperstein, 943
F.3d 12, 15 (1st Cir. 2019).
2MassHealth is empowered to recover benefits from a
beneficiary's estate after death and, in this case, filed a
petition with the Massachusetts Probate Court to ensure payment.
See Mass. Gen. Laws ch. 118E, §§ 31, 32.
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that Kupperstein and Sheedy had no claim to it) and ordered the
duo to pay to MassHealth "any and all" rents collected from the
property. Id. at 16-18. Kupperstein and Sheedy disregarded the
probate court's order and continued to rent the property for their
own gain. Id. at 17. In mid-2017, Sheedy signed over his interest
in the property solely to Kupperstein, but neither the estate nor
MassHealth saw a dime. Id. So, on August 4, 2017, the probate
court held Kupperstein and Sheedy in contempt.
Evidently unphased, Kupperstein rented the property to
new tenants about a month later. Id. The probate court did not
look kindly upon this and issued an order forbidding Kupperstein
from executing any agreements involving the property, voiding
anything he had previously executed, and banning Kupperstein,
Sheedy, and their agents from entering the property at all. Id.
On December 22, 2017, the probate court again found
Kupperstein and Sheedy in contempt and reiterated the order for
each to pay the rents they had been collecting to the estate or
MassHealth.3 Id. The probate court also ordered that the pair
hand in any keys or other ways to access the property and all
3 In the months since the last contempt order, Kupperstein
had sued the estate in Massachusetts Land Court, seeking a
declaration that he was the rightful owner of the property. He
had neglected to mention the litigation in the probate court and
the order that said otherwise. Once the land court got hip to
Kupperstein's game, it dismissed the case because it was brought
in bad faith and ordered that he pay attorneys' fees to MassHealth
and the estate for their trouble.
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documents and leases associated with the property. Id. Plus, the
probate court threatened to jail Kupperstein and Sheedy for thirty
days if they did not pay MassHealth $5,400. Id. Kupperstein and
Sheedy turned in only $3,000 and no keys or leases. Id.
Unimpressed, the probate court set a hearing for January 12, 2018,
and directed each man to explain why he should not be jailed for
contempt for thirty days. Id.
On January 11, 2018, the day before his contempt hearing,
Kupperstein filed for bankruptcy in the United States Bankruptcy
Court for the District of Massachusetts. Id. at 17-18. To keep
things interesting, Kupperstein listed the Kuhn estate as his own
property, valued at $350,000. Id.
Kupperstein did show up for his January 12 court date
and explained to the probate court that it could not touch him
because his bankruptcy filing triggered an automatic stay of court
proceedings against him. See 11 U.S.C. § 362(a).4 The probate
court was unmoved and instead put Kupperstein in a holding cell
for the day for violating the court's orders four times. In re
Kupperstein, 943 F.3d at 18. The probate court yet again ordered
Kupperstein to give up the keys to the property, but he maintained
he did not have them. Id.
4 Generally, a bankruptcy filing causes an automatic stay that
halts other lawsuits against the debtor until a federal court lifts
the stay. 11 U.S.C. § 362(a).
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At the next court date, Kupperstein was almost ordered
to serve his thirty-day sentence, but then produced $5,400 in cash
and the elusive keys to the property. Id.Then, he vanished. Id. The probate court held
Kupperstein in contempt twice more for missing three court dates
and continuing to violate its previous orders. Id. The probate
court ordered Kupperstein and Sheedy to pay over $50,000 in
outstanding rents and over $10,000 in attorneys' fees as sanctions
for their repeated flouting of the court's orders. Id. To drive
its point home, the court warned that Kupperstein and Sheedy would
be jailed for thirty days unless they worked out a payment plan
with MassHealth. Id. The probate court issued warrants for his
arrest, but Kupperstein remained at large. Id.Tired of waiting for Kupperstein to return from his
sojourn, Schall, in her capacity as the estate's representative,
and MassHealth each filed motions in the bankruptcy court to lift
the automatic stay as it applied to any state court actions, so
those cases could proceed.5 Id. Kupperstein (through counsel
because he was still AWOL) opposed those motions and moved that
the bankruptcy court hold MassHealth in contempt and impose
5For instance, Suffolk Superior Court had entered judgment
ordering that Kupperstein pay the amounts ordered by the probate
court, plus over $6,000 in costs and fees awarded by the land
court, and $575,240.37 to MassHealth, representing three times the
amount initially owed to MassHealth by the estate. In re
Kupperstein, 943 F.3d at 18 n.6.
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monetary sanctions because MassHealth participated in the probate
court's various contempt proceedings in violation of the automatic
stay. Id. at 18.
In nearly identical orders, the bankruptcy court found
"good cause" to "lift[]" the stay and ordered that the state court
actions could proceed, except that Schall and MassHealth could
"not seek to enforce against . . . Kupperstein, any judgment with
respect to the $191,741.79 MassHealth reimbursement claim or
attempt to collect from Kupperstein all or any part thereof." The
court lifted the automatic stay in the state court actions "[i]n
all other respects . . . including the assessment by the courts
against Kupperstein of any restitution and sanction amounts." In
support of its decision, the bankruptcy court cited In re Dingley,
852 F.3d 1143 (9th Cir. 2017) and Alpern v. Lieb, 11 F.3d 689 (7th
Cir. 1993), two cases where appellate courts affirmed the
application of the so-called "police power" exception to the
automatic stay.
Soon after, the bankruptcy court denied Kupperstein's
motion to hold MassHealth in contempt and to impose sanctions. In
re Kupperstein, 943 F.3d at 19. Citing the same cases it cited in
its orders granting relief from the stay, the bankruptcy court
analyzed the police power exception in more detail and noted that
"[a] court's imposition and enforcement of a monetary sanction for
contemptuous conduct is an exercise of its police power and is
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excluded from the automatic stay by Bankruptcy Code § 362(b)(4)."
So, the state court actions that "involved the imposition and
enforcement of sanction awards against [Kupperstein] did not
violate the automatic stay" and, therefore, neither did
MassHealth's participation in those proceedings.
Miffed, Kupperstein appealed those decisions to the
district court, but fared no better.6 In re Kupperstein, 943 F.3d
at 19. The district court read all three orders "as having rested
-- at least in part, as a separate and independent ground -- on a
discretionary determination that relief from the automatic stay
was warranted 'for cause' under § 362(d)(1)." In re Kupperstein,
Nos. 18-11772-LTS, 18-11851-LTS, 2020 U.S. Dist. LEXIS 70883, at
*11 (D. Mass. Apr. 20, 2020). The district court then noted that
Kupperstein waived any argument on that point by failing to address
it in his briefing. Id. at *12. Taking a belt and suspenders
approach, the district court further concluded that the bankruptcy
court did not abuse its discretion when finding the balance of the
equities favored lifting the stay. Id. Turning to the denial of
Kupperstein's motion to hold MassHealth in contempt, the district
court affirmed the bankruptcy court's decision, echoing the
bankruptcy court's reasoning. Id. at *14-17.
6 That appeal first bounced from the district court to us (to
deal with a procedural issue) and then back to the district court
with instructions to resolve the appeal on the merits. See In re
Kupperstein, 943 F.3d at 15.
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Kupperstein now appeals, asking us to hold that the
automatic stay is still in effect and remand this case to the
bankruptcy court to sanction MassHealth for violating that stay.7
THE POLICE POWER EXCEPTION
When a debtor files for bankruptcy, the petition
activates an automatic stay of various judicial and administrative
proceedings against the debtor. See 11 U.S.C. § 362(a). The
intention is to "give the debtor breathing room by 'stop[ping] all
collection efforts, all harassment, and all foreclosure actions.'"
In re Soares, 107 F.3d 969, 975 (1st Cir. 1997) (quoting H.R. Rep.
No. 95-595, at 340 (1977)). To that end, the stay forbids judicial
proceedings against the debtor to progress (even those that had
begun before the commencement of the bankruptcy case) until a
federal court lifts the stay or closes the case. See id. (citing
11 U.S.C. § 362(a)).
The filing of a bankruptcy petition does not stay a
governmental proceeding by "a governmental unit . . . to enforce
[its] police and regulatory power, including the enforcement of a
judgment other than a money judgment, obtained in an action or
7 Without any support, Kupperstein also instructs us that we
ought to order his "release from any further incarceration." Even
if we had a stack of "Get Out of Jail Free" cards, we seriously
doubt their application to state court contempt proceedings. Plus,
we note that at the time his brief was filed, the record indicated
Kupperstein had returned, was briefly in custody, and was already
again at liberty.
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proceeding by the governmental unit to enforce such governmental
unit's or organization's police or regulatory power." 11 U.S.C.
§ 362(b)(4).
To determine if the police power exception applies, we
evaluate whether the government's action is to effectuate a "public
policy" or to further its own "pecuniary interest." Parkview
Adventist Med. Ctr. v. United States, 842 F.3d 757, 763 (1st Cir.
2016) (quoting In re Nortel Networks, Inc., 669 F.3d 128, 140 (3d
Cir. 2011)). If "the governmental action 'is designed primarily
to protect the public safety and welfare,'" then it passes the
"public policy" test and is excepted from the automatic stay. Id.(quoting In re McMullen, 386 F.3d 320, 325 (1st Cir. 2004)). In
contrast, if the government is attempting to proceed against the
debtor for a "pecuniary purpose," that is, "to recover property
from the estate," the police power exception offers no shelter and
the proceeding is stayed. Id. This exception intends to
discourage debtors from filing bankruptcy petitions "for the
purpose of evading impending governmental efforts to invoke the
governmental police powers to enjoin or deter ongoing debtor
conduct which would seriously threaten the public safety and
welfare." In re McMullen, 386 F.3d at 324-27 (distinguishing
proceedings to protect the public in the future from those that
"seek recompense for [] alleged financial losses").
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Though we have not opined precisely on the question at
hand, the bankruptcy court cited in its orders two cases where
sister circuits applied the "public policy" or "pecuniary
interest" test for the police power exception to contempt
proceedings. In In re Dingley, the Ninth Circuit held that civil
contempt proceedings were excepted from a bankruptcy's automatic
stay because those "proceedings are intended to effectuate the
court's public policy interest in deterring litigation
misconduct." 852 F.3d at 1147-48. In Alpern v. Lieb, the Seventh
Circuit similarly held that a proceeding to impose sanctions under
Fed. R. Civ. P. 11 was excepted from the automatic stay of
bankruptcy, even though the sanctions were monetary where the court
ordered the debtor to pay attorneys' fees for his misconduct in a
different proceeding. 11 F.3d at 690. Dismissing the notion that
a Rule 11 proceeding is not excepted, even though the result could
be the payment of money to an individual, the court noted that the
purpose of a Rule 11 sanction is to punish "unprofessional conduct
in litigation, . . . just as an order of restitution in a criminal
case is a sanction even when it directs that payment be made to a
private person rather than to the government." Id. Relying on
these cases, the bankruptcy court wrote that the purpose of civil
contempt proceedings is not to line the government's pockets, but
"to uphold the dignity of the court and the judicial process, to
punish bad behavior and to educate the public in the importance of
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obeying court orders." In re Kupperstein, 588 B.R. 279, 280-81
(Bankr. D. Mass. 2018).
STANDARD OF REVIEW
Where, as here, we serve as a "second tier of appellate
review," we look through the district court's determination and
analyze the bankruptcy court's decision directly. In re Montreal,
Me. & Atl. Ry., Ltd., 956 F.3d 1, 5-6 (1st Cir. 2020). As usual,
we review the court's factual findings for clear error and accord
no deference to its legal conclusions. Id. at 6. When considering
the type of orders at issue here (decisions on motions for relief
from a stay and for sanctions), we only reverse where the
bankruptcy court abused its discretion. See In re Soares, 107
F.3d at 973 n.4; Hawkins v. Dep't of Health & Human Servs. for
N.H., Comm'r, 665 F.3d 25, 31 (1st Cir. 2012). The bankruptcy
court abuses its discretion "if it ignores 'a material factor
deserving of significant weight,' relies upon 'an improper factor'
or makes 'a serious mistake in weighing proper factors.'" In re
Fin. Oversight & Mgmt. Bd. for P.R., 939 F.3d 340, 346 (1st Cir.
2019) (quoting In re Whispering Pines Estates, Inc., 369 B.R. 752,
757 (B.A.P. 1st Cir. 2007)).
OUR TAKE
The core dispute is whether the probate court's contempt
proceedings and resultant penalties are excepted from the
automatic stay (as the bankruptcy court held they were) and
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therefore MassHealth's participation did not merit sanctions or
whether those proceedings are not excepted, opening a can of worms
about whether the bankruptcy court likely abused its discretion in
partially lifting the stay and not sanctioning MassHealth.8 We
begin with a de novo review of the legal question of the reach of
the police power exception and then evaluate whether the bankruptcy
court abused its discretion in each of the challenged orders.
The Police Power Exception
First, all agree we ought to evaluate the probate court's
orders through the overlapping lenses of "two interrelated, fact-
dominated inquiries": the "public policy" test and the "pecuniary
purpose" test. In re McMullen, 386 F.3d at 325. MassHealth and
Schall argue that the probate court was merely serving a compelling
public policy of enforcing compliance with court orders. For many
months prior to his bankruptcy filing, the probate court had been
ordering Kupperstein to follow the rules, stop masquerading like
he owned the Kuhn house and turn over the rent he illicitly
collected, and pay the attorneys' fees he forced others to expend
each time he failed to comply. Kupperstein consistently declined.
8 There does not appear to be any dispute that the superior
court, land court, and probate court fall within the Code's
definition of "governmental unit," defined as a "department,
agency, or instrumentality of . . . a State, a Commonwealth, a
District, a Territory, a municipality, or a foreign state." 11
U.S.C. § 101(27). The question is more precisely whether the
contempt proceedings are excepted from the stay.
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Kupperstein, for his part, sees this as a classic case
of the government pursuing a pecuniary interest because there is
money involved in the probate court's orders. But that ignores
the full range of the probate court's instructions. The probate
court's contempt orders included instructions to Kupperstein to
turn over keys to the property, to cease leasing the property to
tenants as the landlord and to not engage in any new leases, and
to turn over any documents he had previously executed regarding
renting the property. These orders of the court are plainly not
an attempt to collect money and there is simply nothing in the
"pecuniary interest" test or the Bankruptcy Code, generally,
forbidding a court from ordering that a debtor hand over the keys
to a house that he does not own. Rather, a court (or other
governmental agency) "acts in the interest of public safety and
welfare" when it ensures unscrupulous actors do not have keys to
property over which they have no ownership. See In re Spookyworld,
Inc., 346 F.3d 1, 9 (1st Cir. 2003) (holding that a town's
proceedings to enjoin a company for failing to install sprinkler
systems in its structures in violation of the building code
constituted actions undertaken for the benefit of public safety);
In re McMullen, 386 F.3d at 326-27 (finding that a board's
proceedings to revoke an unscrupulous real estate broker's license
constituted actions taken to benefit the public welfare).
Kupperstein has no counter-argument to this (not that a strong one
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could be conjured anyway) because he entirely ignores it in his
brief, waiving any challenge to the bankruptcy court's order
lifting the stay as it applies to those provisions of the probate
court's order. See Marek v. Rhode Island, 702 F.3d 650, 655 (1st
Cir. 2012).
Turning to the aspects of the probate court's order
involving money, Kupperstein does expend many pages of his brief
on the argument that the police power exception does not apply to
MassHealth's attempts to collect the underlying debt in the probate
court, and he's right. But, the record shows that no one is
currently trying to collect on that judgment. The bankruptcy court
order explicitly maintains the automatic stay for any activity
related to judgments against Kupperstein for the nearly $200,000
owed to MassHealth via the Kuhn property. And, post-petition, no
court ordered Kupperstein to satisfy the judgment against him. As
such, Kupperstein's extensive argument on this point is merely
fighting a straw man, and we need engage no further.
So, finally, what about the aspects of the probate
court's contempt orders that require Kupperstein to pay sanctions
for repeated violations of court orders and disgorge the rents he
collected (in violation of court orders) from tenants (living on
a property over which Kupperstein had no legal control)? He argues
that any attempt by the probate court to force Kupperstein to hand
over so much as a dime is automatically for a "pecuniary purpose."
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But this ignores the distinction between a judgment prematurely
awarding assets to creditors ahead of the process permitted by the
bankruptcy court (exactly the sort of thing the automatic stay is
intended to prevent, see In re Spookyworld, 346 F.3d at 10) and an
order commanding disgorgement of ill-gotten gains accumulated in
direct violation of a court order. Federal courts regularly
approve the application of the police power exception to the
latter. See United States v. LASR Clinic of Summerlin, LLC, No.
2:19-cv-00467-GMN-NJK, 2020 WL 6044550, at *2 (D. Nev. Oct. 12,
2020) (approving of police power exception to permit the government
to pursue False Claims Act case to recover improper government
payments to debtor); In re RGV Smiles by Rocky L. Salinas D.D.S.
P.A., Nos. 20-70209, 20-70210, 2021 WL 112182, at *6 (Bankr. S.D.
Tex. Jan. 6, 2021) (applying police power exception to state
Medicaid fraud statute to permit government to pursue funds
illegally claimed by debtor); Al Stewart v. Holland Acquisitions,
Inc., No. 2:15-cv-01094, 2021 WL 1037617, at *1 (W.D. Pa. Mar. 18,
2021) (permitting Fair Labor Standards Act case to proceed under
police power exception, including action for back pay, where debtor
allegedly withheld pay legally owed to employees). The automatic
stay's "main purpose is to prevent some private creditors from
gaining priority on other creditors." In re Spookyworld, 346 F.3d
at 10. Neither MassHealth nor Schall would gain any priority on
Kupperstein's other creditors because the bankruptcy court order
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does not permit the probate court to command Kupperstein to pay
his debts to either party. Any claim MassHealth or Schall has to
Kupperstein's estate remains unchanged by this order. See Chao v.
Hosp. Staffing Servs., Inc., 270 F.3d 374, 389 (6th Cir. 2001)
(applying pecuniary purpose test to ensure government action would
not give certain creditors an "advantage" over other creditors).
Even if the financial aspects of the probate court's
orders arguably serve a pecuniary purpose (though we hold they do
not), that still would not change the result of our analysis.
Where the application of the police power exception contains
various elements, some of which effectuate a public policy and
others of which could involve pecuniary interests, we examine the
totality of the circumstances and what "the governmental action
'is designed primarily to [do].'" Parkview Adventist Med. Ctr.,
842 F.3d at 763 (quoting In re McMullen, 386 F.3d at 325). Here,
the rent payments and attorneys' fees only manifested after
Kupperstein ignored the probate court's earlier orders to
relinquish the keys, stop renting the house to others, and stop
pocketing the proceeds. Even after the bankruptcy filing, some of
the probate court's contempt orders did not demand the payment of
any money and, instead, reiterated the court's primary desire to
force Kupperstein to cede control of the house. Kupperstein's own
refusal of earlier orders that had no money at stake created this
situation and our case law is clear that we do not reward debtors
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who submit bankruptcy petitions to avoid governmental orders. See
In re McMullen, 386 F.3d at 324-25 (noting that the police power
exception discourages the submission of bankruptcy petitions "for
the purpose of evading impending governmental efforts to invoke
the governmental police powers to enjoin and deter ongoing debtor
conduct which would seriously threaten the public safety or
welfare"). Put another way, "[a] litigant should not be allowed
to delay the imposition of sanctions indefinitely by the expedient
of declaring bankruptcy." Alpern, 11 F.3d at 690. Any way we
slice it, the probate court's contempt orders pass the public
policy test and are not to serve a pecuniary purpose.
Kupperstein raises two additional arguments that merit
our discussion. Pointing to 11 U.S.C. § 362(b)(4), he believes
that the "plain language" of the Code makes our resolution of this
case "crystal clear." On its face, the Code's plain language does
not address this question at all. Yet, best we can cobble
together, based on the assumptions wrapped up in Kupperstein's
contentions, he seems to be trying to tell us the following: the
police power exception does not apply to enforcing "money
judgement[s]" and any court action with money involved is an action
to enforce a "money judgment." Kupperstein's argument here is
actually a repackaging of his contention that the probate court
order is for a pecuniary purpose. On that point, we remain
unmoved.
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Finally, Kupperstein explains, we are bound by our
precedent in Parker v. United States, which he says stands for the
proposition that civil contempt proceedings are for a pecuniary
purpose and are therefore subject to the automatic stay. 153 F.2d
66 (1st Cir. 1946). But Parker is inapplicable here. In that
case, issued prior to the promulgation of the Bankruptcy Code, the
court considered whether a pre-bankruptcy civil contempt award was
dischargeable after the close of bankruptcy. Id. at 67-68. The
court did not wrestle with any of the questions at issue here.
Kupperstein cites to it for its lengthy discussion of the
differences between civil and criminal sanctions, but there is no
dispute that the probate court orders here are civil in nature
(having been imposed to coerce Kupperstein's compliance with valid
Massachusetts court orders) and that the Code permits some civil
actions to proceed during the automatic stay. See 11 U.S.C.
§ 362(b).
With no more arguments to address and considering the
totality of the circumstances, we conclude the probate court's
contempt orders are excepted from the automatic stay under the
police power exception.9
9 Because we resolve the issues on appeal based on the police
power exception, we need not address the bankruptcy court's lifting
of the automatic stay "for cause" under 11 U.S.C. § 362(d)(1). We
note here, however, that Kupperstein's argument on appeal that he
"has carefully reviewed the appellees' motions for relief from the
automatic stay, and can find no reference to that section in the
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The Merits of Kupperstein's Appeals
With the law on this issue firmly established, our
resolution on the merits of the bankruptcy court's orders becomes
simple. The bankruptcy court did not abuse its discretion when
lifting the stay as it applied to the probate court's contempt
proceedings because those proceedings were excepted from the stay
under the police power exception. Similarly, the bankruptcy court
did not abuse its discretion when it declined to hold MassHealth
in contempt or levy any sanctions against it for its participation
in the probate court's contempt proceedings. Those proceedings
were not stayed by the automatic stay, so MassHealth's
participation was proper.
CONCLUSION
The bankruptcy court's decisions were correct and the
district court properly affirmed. We affirm the district court's
order and award costs to the appellees.
motions" is unavailing and misleading, as MassHealth's memorandum
in support of its motion for stay relief, which was before the
bankruptcy court, clearly lays out an entire section of argument
premised on 11 U.S.C. § 362(d)(1). Indeed, it is Kupperstein who
should be concerned about waiver, as he doubles down in his
appellate briefing by failing to address the merits of the
§ 362(d)(1) argument, only arguing waiver and that the bankruptcy
court's use of "good cause" was boilerplate language, despite the
fact that the court was briefed on this issue. The district
court's emphasis on the alternative grounds of § 362(d)(1) gave
Kupperstein ample notice and opportunity to address the merits of
any such argument.
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