standing does not provide any substantive cause of action the only way that section forty three when they can make sense in the statutory scheme is for federal common law to be incorporated into it so you know what you want us to establish a federal common law cause of action in favor of a contribute contributing employer for negligent with management of the plan correct as any other court recognize such a cause of action there is not a court has recognize fortunately in the thirty five years since that date withdrawal liability has not been a material risk to many union contractors over that period of time i don't think there's such situations ever occurred before i think that there have been there's obviously  economic ties and lows but there's never been a perfect storm like there's been in the past three years with interest rates being low as it dies being down that has brought forth the negligence in the mismanagement that's happened in these plans and i do think the  action on employers so when you take that small pool of plaintiffs that we've had over the past thirty years and we you know apply the fact that this is a confusing in fairly ambiguous statute i think that the fact that there hasn't been this type of cause of circuit and colter nondairy i mean there are some limited situations there but i mean establishing a cause of action for negligence in favor of a contribute toward contributing poirier i mean you would just think that that would have come up since ninet that together i think you have a very narrow pool of plaintiffs and that combined with the fact that section forty three or one is inherently confusing and ambiguous and in a silent as to what types of cause of actions can be brought i think that explains it as opposed to the thing i mean in order to in order to maintain this claim that would have to be some type of express duty of care which has been breached by the the planet ministry or the employer directly in the the trustees and it would be an ordinary standard of care ok no heightened standard no heightened standard it would be an ordinary standard of care we understand that the burden on us would be significantly greater than it would be if this were say a fiduciary case is they claim it's a back door one is that the for this type of litigation to come up there would have to be an injury and the injury could only happen if there's a trawl i don't think that there would be a race to withdraw from these plans and take millions of dollars of liability on employers balance sheets simply so they can get into the courthouse on the hope that they could prove negligence to try to mitigate a portion of that withdrawal liability so do i think that it would open up and create a level playing field for employers vs trustees going forward yes i do do i think that it would open up the floodgates for litigation no i don't because i don't think that the economics of it would would favor employers to go out and trigger these withdrawal liabilities to then go in the cost of litigation to try to get a piece of that mitigated based on whatever piece was for and is that an indication that somehow this is a frivolous argument or some argument doesn't hold water my point there is to say that you know there's a lot of factors that go into the amount of the underfunding in the amount of withdrawal  liability what i would say is the mismanagement has not changed the mismanagement has been there but just like any defined benefit pension plan it's a bit of an i hate to use the word but a bit of a ponzi scheme in that you're always borrowing from peter to pay paul and so as long as you can keep that going the mismanagement may not come to the forefront the economic recession and depression of two thousand and eight the fact that interest rates are low the fact that union membership is low in union contracts or earth are generally speaking in decline that has all brought this to the forefront and i think it is it's an appropriate times now look and say is there something that could have been done and should there have been something that could have been done over the past however many years on a good manager is a specific cause of action  standing to employers for the first time ever when we draw liability rules are put into place there was a recognition that now and employers could actually be aggrieved and they should have a cause of action and so they were given standing but they there was no substantive cause of action listed which is why the call to go on their record created this and it applies i think it's important to define the standard this court is set forth and it's been so forth a couple different ways the first way it was set forth was in the one in national bank and in that case this court said that federal federal common law is a balancing act that there has to be a statutory host but the federal common law cause of action can't substitute for an already for expressly provided statute that's to your point this case falls right at the focus of that balancing act because section forty three one a provides that statutory host it contemplates an employer could bring a cause of action and should be able to bring a cause of action with respect to adverse effect with respect to withdraw liability but because they didn't list anything it doesn't express the substitute for a provide a remedy that was provided by congress and i think that ties into the congressional intent senator javits who was the sponsor of both a recent and the multi employer pension plan amendment act rules came out and said on many occasions that there's going to be gaps and there's going to be gaps that were intentionally left in the ressa and that they want the federal courts to fill in those gaps because they don't know how this is going to be applied over time and i think that in one nine hundred eighty when this was created i don't think they understood how this was all going to play out and so they left it intentionally plank for the courts to fill and that's no different than what the cult of young cork did and came down on that side and said we have to fill in the blank here otherwise we have a situation where we have a standing granted to an employer in absolutely no mechanism for that employer to exercise that standing that's not only an awkward result it's an impossible interpretation of the statutory scheme in our estimation that brings me back to the standard certain things don't you the employer construing employer under section five zero two has no there's no express statute grand or not no express statute correct you're talking about the the common law remedies that negligence when i was saying is the standard that's been put forth by the court in the honing and then later codified in local six or six eight two talks about having the statutory host but not having expressed statutory remedy that's been given so we're talking about here is saying that section forty three when they provide standing but there is no statutory cause of action that can be given therefore it has to get that gap has to be filled in by federal common law the normal rules that were were somewhat reluctant to federal common law remedies when when congress has acted in the area i mean that's just the general rule is the general rule is that you do the federal court should excess exercise for strength so as not to supersede or substitute for what a res expressing granted cause of action i think it's very critical to rid recognize here that the civil remedies that were put in place with respect to withdrawal liability were put in forty three zero one forty three zero one a under barry alarming the supreme court has come out and said it is only a standing statute it is not a substantive cause of action so there has to be some way that employers can exercise that standing and there is no statutory cause of action that's been granted to that which is why it has to be filled in by by federal common law and that's our argument as to why our case falls yes they they talk about the fact that congress granted the trustees enormous power to manage these funds and have somebody else pick up the tab and there's no way that they they gave that kind of power and that kind of discretion to trustees without there being some kind of check on that power and what we're arguing is that it doesn't just have to be in the extreme case of fraudulent inducement where there is an actual fraud committed to that should apply that can't be the if if congress intended for three a one to be interpreted that narrowly that it was only going to be applied to cases of fraud or cases of extreme whatever it may be then i think they would have they would have given us a road map when they leave it broadly open i think they're saying that you know the federal courts in the eisenberg kevin schroeder and james steele and their capacities as trustees to the teamsters local number two nine three  the court has indicated that they are familiar with the briefs and counsel has obviously provided some argument already this morning on the other side so i'd like to address some of the points that were raised briefly in the argument we just heard the  appellee is appealing for the appellant is appealing from an october twenty fifth twenty thirteenth order dismissing the prejudice the complaint which raised one count for a seeking to get recognition of a federal common law cause of action duties to beneficiaries and participants that's who the for to shoot fiduciary duties in a ressa are owed to and congress has created a remedy for them in the event of such a breach the harm here the adverse of the adverse effect that the employer complaining of is that it has been assessed withdraw liability in the event of a plan being underfunded let's precisely what the multiemployer pension plan amendments act was designed to do it was designed to make sure that in the event that there was underfunding of a plan that the employers would have to be employer is saying is that the trustees erred by not charging it more by not charging the employers more controller not requiring employers to contribute more during the pendency of the plan and while they were in the plan and so really it's an issue of where you should have charge that and so now you can't charge just now the issue is that there's an underfunding that exists and so whether the underfunding regardless of the reason of the underfunding and here the argument or at least with the allegations are is that the underfunding was caused by again ratifying rates that were negotiated by the union in the employer as to what should be contributed and the complaint is that the trustees ratified those rates resulting in underfunding my colleagues talked about to change the landscape all the causes that have contributed to the fact that there are underfunding employer is afforded i think if the employer believes that it should be afforded to remedy that that is an issue for congress to address and congress has not addressed it congress expressly allowed for plan participants in beneficiaries to complain about breaches of fiduciary duty having to do with financial management of plant assets it even though congress didn't provide the proper miti the courts recognize that the wife of the similar to that situation of the issue of fraud is treated differently as we all know in a lot of different circumstances i mean there are exceptions for fraud in a lot of instances in the case was a very specific case in which the employer was fraudulent we induced to join into or agree to have their plan joined with another plan based on concealment active concealment effects that's a different circumstance th didn't prevent really in other circumstances i don't and i'm sitting actually you're making ok and i'm saying that i think it is a different case i think that and i think fraud wasn't addressed overall in arrest so whereas again mismanagement of planned assets was addressed but the e as we've been discussed already this morning there is no basis here for recognition of a federal crime law cause of action the statute isn't silent as we just discussed it in fact it does provide a remedy for the mismanagement of plan assets but that remedy does not go to contributing employers there's no fundamental arista policy that my colleagues identified that would be furthered by recognizing this federal common law cause of action and in fact this is really an effort as we've talked about to circumvent the statutory scheme that exists whereby the breach of duty is one that flows to participants and beneficiaries the trustees have always exerted their efforts to make sure that that that they were protected and that's what risk it was designed to was designed not to make sure contribute employers were ok but to make sure that people's benefits were there when they needed them and their promised benefits would be there at the end of the day and the way they did that they did that when they saw this issue they saw an issue congress saw an issue of people fleeing from plans in order to avoid withdrawal liability they signed that will draw liability expressly to contribute employers in the event of underfunding contribute employers were supposed to be the ones to fill that gap that's the whole point of the statute and so that is why the remedy that the appellant seeks is not one that's provided for it makes sense it's not when it's provided for that wasn't the purpose of the statute the purpose of the statute was to protect the participants and the beneficiaries by making the employers liable in the event of underfunding be calculated assessed we absolutely agree with that we are not challenging the assessment of withdrawal liability we understand that we owe one point eight million dollars to the pension plan we are not challenging that what section forty three zero one eight hells us is that when we get assessed the employer employee used to make contributions any more well i think that's also an oversimplification of our claim to say that we are only basing this on the fact that the contribution roads are due to low pay the contribution rates were too low that's true we think that the it was a mismanagement a lot that goes into making sure that what goes into the plan is sufficient to come out of the plan and that wasn't done appropriately and if you don't do that appropriately it's not the it's not the economic climate that that is going to ultimately get you eventually if you're not put in enough and not taken care of it the right way to support what's coming out the other end you're going to end up with an underfunding in you're going to end up with an insolvent plan it's just it's just the math and that's what happened here it wasn't simply one factor it was a lot of factors we played it that way and to say that we're just trying to shift the payment from the front end to the back end is just not it's a it's a mis misstatement of our claim and just not true the last thing i'd like to say is that to the point  of participants in beneficiaries having a remedy under five o two participants in beneficiaries don't get harmed by withdrawal liability it doesn't go on to them we're talking about a different harm forty three a one a was put in when the withdrawal liability rules were put in simply because soley because now employers were going to have a harm that was separate distinct from harm that a participant or beneficiary could happen could could could you know could you know experience so the fact that they can sue under five o two for a separate cause of action for a separate harm has nothing to do with forty three a one a and how we express you know exercise the standing that we were expressly granted under forty three when they and we do think it's a congressional intent to allow us to explore this crime and we understand that we have to your point have a higher burden to prove we're just looking to prove it and we're looking for this court we think additional court aired an argument is that opportunity we're looking for this court to overturn that decision allow us to explore that and be able to prove to you that you know to your point that this wasn't