please the court i'm still your parent holds and i reckon i represent count him on this appeal your honors we recognize that arbitration awards are entitled to deference and that we have a heavy burden here we submit that this is the rare liability that had never agreed to assume liability for delays to the project that occurred before it got into the project and before it had committed any contract breach this project was five years along when cata purchased eastern bridges assets kind of had no interest in acquiring eastern bridges liabilities and it made that very clear in the asset purchase agreement the a seeking a declaration that can and was not liable to tully for anything that occurred prior to the a p a that the supreme court of new hampshire ultimately say that that litigation was limited to resolving the dispute between can and eastern bridge but what the new hampshire court did was recognize that there was an arbitration agreement it said i'm not deciding whether contracts have been breached i'm going to decide the court said what the a p a says and what the new hampshire court said is that can i'm assuming the liability of eastern bridge except those liabilities that are attributable to eastern bridges failure to comply with the whitestone contract and the new hampshire court said i expect the arbitrator to apply my construction of the a p a and new hampshire law in the arbitration tolly was a party tolly was in the courtroom totally had the right to be heard told he wasn't dismissed from the case and was that it wasn't liable to tolly now this this is as necessary to that result as it could be but the link just going to read to you it's seventy nine of the appendix  to the terms of the e p a between canada and he said no because the court goes on to say that the court will not educate the application of the a p a and i'm sorry i'm reading the wrong part on a rights to the agreements in question so i think when you look at the opinion what the court is saying is i'm only going to construe the agreement but i'm issuing a decision that applies to all of the parties i'm not the court says going to decide if the contracts were breached but i am going to decide the declaration i'm going to issue the declaration that was sought and the declaration that was sought was th kana wasn't liable to tally for anything that occurred prior to the a p a and then eastern bridge cross move for its own declaration and either way the a p a was critical to the outcome do you agree that the new hampshire's court here could have been a little clearer to you that i agree that that there is that the new hampshire court could have been a little clearer but i i think that with that we have to look at this though in terms of what the law of race judicata is and the law for a strict judicata is that if you're a party to a case you're bound by the judgment so that i think we have to not just look at be right could be wrong that it did not include the specific dispute between tali and kemp and that it was limited to the dispute as is the word state's on seventy seven fifty arbitration nothing that a court says counts because that's basically the dicta argument not that it's not that it's not a focus on whether it's necessary to the result but whether there's an arbitration  didn't dismiss tali tolly appealed it's it was affirmed talking as a party to this case if tully's not going to be bound it can't be a party to the case but there's another reason that's a different reason that there's manifest disregard he honor and that's because even if you throw the new hampshire order out the window and you don't pay any attention to it at all there still has to be a basis for finding that kadam had success or liability and this arbitrator had a duty to give a reason to war he didn't acknowledge that issue he didn't address that issue and there is nothing in the contracts that supports success or liability by my by my client so even if you don't rely on new hampshire there's there's still the fundamental issue where a successor liability come from it doesn't just come out of the sky and the arbitrator knew this was a critical issue i mean he knew that count  to new hampshire to get a declaratory judgment how could he not know that this was a critical issue but his opinion doesn't deal with it it doesn't deal with it at all and he had to give a recent award and i submit that he didn't deal with it because he was in a box he'd already issued his damage awards when he was told by the district court here that he had to issue a wrist reasoned and ward and there is no way there is simply no way to take those damage awards and have them make any sense in light of the party's contracts he did what arbitrators sometimes do he just did what he thought was the appropriate result but it wasn't tied to the contract and then he had to give an explanation he had to explain how he got to where he got it's not asking much the district court said you've got to explain how you got to the liability and damage awards that you made and there are two contracts here they're absolutely critical there's the a p a which is how my client got into this project and then there's a letter agreement which on its face is a contract it says agreement it's signed by the parties the cornell claim in the labor escalation claim yes what is the basis for that argument tali how to damage chart which it requested damages it requested damages for its a lay period that ran from december two thousand and six to april two thousand and eight the arbitrator awarded one hundred percent of the damages saw by tully on the cornell claim therefore he clearly awarded damages for the entire delay period that that tully saw at december of zero six through april of zero eight that one is crystal clear the labor escalation one is a little less clear there he said i'm going to give totally sixty nine percent of what it asked for when you look at the math and have a footnote in the briefing that shows you how when you go month by month it has probably went through me and it has to be that some part of it is pretty a p a now it could be that most of it is pretty a p a we don't know that because he didn't explain what he did but at least some of it must be so he has he has your honors of an obligation to issue a recent award and he doesn't address these key issues and we submit he doesn't address these key issues because he doesn't have an answer and so this is that rare case where the arbitrator acted in manifest disregard and assure us as the second circuit has held one of the things that you can look to in determining whether there's manifest disregard is whether the arbitrator explained what he did and the arbitrator here didn't explain what he did i mean he explained some aspects of his decision there's an award it's eleven pages long i'm not saying he didn't address anything but these critical issues these two critical issues of the letter agreement which goes to the end date of the delay period and the and the a p a which goes to the beginning date where you set the beginning date of the delay period he didn't address them a the arbitrator gave a credit and the question is how much should the credit be does is just the principle or does it include the interest and and the answer is it must include the principle must include interest because the arbitrator if the arbitrator wanted to set the amount without without basing it just on principle he could have easily filled in the blank himself so when he said that he wanted to credit the amount of the with with the amount that was in the escrow account and he said i forget the exact language he said  the sum of six point five million and change less the amount the telly may now reimburse itself from escrow approximately nine hundred sixty one thousand eking use the exact numbers because he's assuming that interest is going to be taken into account yes and interest grows so it's not a question of whether tully gets the money totally gets the principle and while it gets the interest it's a question of how much credit counting was intitled to for that in computing the amount of the judgment but it was a difference because the way the the way the judgment worked counted was told to pay tully a certain amount less the amount that was in escrow in the delivery agreement which is the last agreement that the parties entered into they agreed to escrow certain money and so there was money sitting in that escrow account and the arbitrators interest all the interests was going to the party who was awarded the prince yes as i say there's no dispute about who gets the money the issue is about what amount of credit off the judgement  raise i just i wanted just to to address the policy here ok so we've we've used a good amount of your time why do you address that final point and you'll still have two minutes of about it thank you your honor the recent award requirement has has a  purpose it's to constrain arbitrators it's to make them more rigorous in what they do and here's here's a case where an arbitrator didn't think he had to issue the kind of recent award he he had to and so he wasn't constrained the purpose of arbitration and i know i know the second circuit has said that the law is meant to encourage arbitration i'd submit the parties are going to be much more inclined to agree to have their disputes resolved by arbitration if they understand that the recent award for quire meant means something and that it and that it constrains arbitrators and i'd also submit that the people are going to be more inclined to submit their disputes as an arbitrator you select it isn't it fine it's yes i mean it was mutual he was mutually agreed upon but yes he was initially nominated by by our client i don't i don't that he was a lawyer and i think that's also important in thinking about where he went why manifest disregard works it's not like he was an engineer it's not like he was an accountant use a lawyer and a reason to ward is a middle ground it's something you know that it's more than a bear which doesn't have to say anything in the way that i view it i think is that it's something less than a summary order of  or reason towards less than a summary order no i would say a reasoned or a reason to work or be more like as a son or daughter ok well i'm assuming the second circuit addresses the issues before it and provide some reason for its result that is rational and that's what this arbitrator had to do he didn't have to write a full blown opinion but he had to acknowledge that the issues were the issues and provide some rationale for the damage awards he made and it comes down to and correct me if i'm missing one of the principal arguments but the move are summary orders will sometimes conclude with we've considered the remainder of the petitioners arguments in there without merit you're saying he needed to address the issue of success or liability and the imposition of create p a a acquisition liability on your club he needed to consider the central issues the key issues these were central key issues and he didn't deal them no i don't say he had to deal with every single issue central key issues that's what this court said in the word and that's what he had to do and that's what he didn't do thank you forward and this scored fifty five years ago established the manifest disregard of the last standard and it's an exceedingly rare finding for this court to determine a manifest disregard of the law and based on up my review of the one hundred second circuit decisions only five were vacated and of those three there were grounds for vacant church other than a manifest disregard of the law and in reviewing those cases it clear that the manifest disregard of the law is inextricably intertwined with a public policy decision in one thousand nine hundred one which was the first case this court vacated based on manifest disregard permanent case and that concerned the application of a conflict between the national labor relations act and a union designation of super seniority status in that case after an arbitrary award for a labor dispute the court said that the piano disregarded the national labor relations act and for public policy reasons it was inappropriate to designate a shop steward having essentially immunity that's not even close to the zip code that we have here in the foreign stock case which is a little more interesting because in that case there was an award of  punitive damages and the court felt that it was given new york courts of appeal decision previously that determined it was for the court not the arbitrator's to make a determination of punitive damages they vacated the award in part bereft of any decision it was a summary one line award and the court vacated we believe because of public policy grounds but also in the mountain of evidence in the face of admitted age discrimination by the employer the court said there is no basis in fact or law and it would be had to of violated the piano had to have ignored the prevailing law on employment discrimination based on the absence of any articulation shortly after that the second circuit reigned that court in and said in reviewing they could sure of the words we look at was there barely colorable reason and was there any justification of all at all in the award most recently in the new york telephone case it was an illegal contract an employer could not contribute to a fund that benefited the employees and most recently as a poor is the case and that was the perfect storm of calamity it was misrepresentations by counsel there was an award of attorney fees and it was remanded because the piano in in violation clear violation of the statute refused to award attorneys fees it court told the panel to award attorneys fees the awarded them and imposed the wrong standard so this court has been self selecting and very very cautious about deferen justification for that and no explanation well that's a brand new argument your honor ball dress it had on first of all the let's go back again to the new hampshire court order at that time there were three parties to the arbitration there was eastern hampshire order is perfectly consistent this court could affirm can and could still go after consistent with the new new hampshire order for its remedy but that the new new hampshire court was very deferential and i'll agree with all your court all the judges interpretation it is not the model of clarity there is something for everyone in that order but what is clear in that order was that the court was not going to trample on or  interfere with the arbitrator's rights to determine the body of agreements as between the parties and respective liabilities which again to repeat at that time was a tripartite determination in this case it was between these two parties here today and to address leeward leeward says that a reason the war does not require explaining each and every ruling to a dissatisfied party in this case we believe that the arbitrator did he weighed the evidence in respect to the labor escalation claim which your honour's mentioned he specifically said there were audit issues and that's how we came up with a sixty nine percent rating all the courtney do is look at exhibit a twenty four it is four pages long there are fifty four separate lineups that's the damage summary that's not the damage rather evidence that was  amassed and and hotly contested throughout this case that's just the summer and each one of those was a separate trial with in that arbitration there were eight hundred exhibits there were eleven witnesses this was hotly contested over each and every which included liquidated damage assessment by the new york state the public transportation if those damages were not assessed as of that time so evidence was not presented on those so the revised damage summary submitted by telling was fourteen million dollars so under can amps the area there were seven point five million reasons why the panel got it right but there were six point five reasons why the people got it wrong this so this was a now dibble arbitrator who went through the mountain of evidence for sixteen months of the way took each one of the damage categories meet considered ev determined the sixty nine percent was because of audit issues with the issue with the interest that was to be subject to a motion to modify our motion to clarify pursuant to aaa rules which must have been filed thirty days after the arbitration moreover and more significant can am was invited to release those funds for us from astro at the time of the award and and the client more importantly if their construction is right then it would have been a floating interest award so if we'd gone into a period of great recession we're into interest rates went down to one percent and the escrow account actually faded from its initial deposit that would have been a risk tali took now they want the reward of it on top of  very briefly your honors my adversary pointed to no place in the revised award where the arbitrator addressed the issue of the letter agreement or successor liability he pointed to nothing that would suggest that these issues were not key issues in the arbitration he pointed to nothing in the contracts that would provide even a barely colorable basis for the arbitrator's decision to impose damages on my client on those four claims with respect to the issue interesting issue your honor it was raised in the district court judge card if you took submissions on it judge card if you made a decision there was to the best of my recollection no argument made in the district court and the decision was modification and i that's what i'm saying and i have no recollection of that being argued below i think this is the first time i'm hearing about it at the proper course being a motion to modify or vacate i have don't recall that being in the in the briefs before this or argue to the district court but certainly the district court dealt with these issues and i think we have the right to appeal from them given that he that he thank you thank you