morning runners who are here today to move to confirm in part and reject import the report recommendation of the masters which was dated february march twenty two twenty sevent the one significant legal question that exemption to exist here is what is the applicable standard for our review and that would seem perhaps to be unsettled so can you help us with that yes we have factual findings made by a special master that's group delivered to us so what do we do with them well u the reason for the amendment i think the overwhelming background is that the masters have done more substantive factual and legal findings  to the facts and we will review issues of law did novo looking directly to the special masters binding factual findings to determine whether they established a legal arguments required for relief and that's precisely what we're saying here you're ours that the factual findings with regard to alcoa's inability to pay the question of the health adoptable reimbursement plan using monies from the employees not outwards money and the issue of whether paying legitimate business expenses allows the company to stay in business are all reveal by your r s but the key fact it's missing well all of them before you get too deeply into the facts i'd like to explore a little more would judge chief judge smith had to say you're advocating for a dyno both standard of review right well there's no question that the rulings of law the conclusions of law  saying on facts how you apply the facts the law according to the maccallum case this court has said it's do know is that that was at the same set of circumstances here though while this was a case where the facts were stipulated which is going to be exceptions right in the review i just wonder how we would explore a little bit how would do you know of a review work in this way i can understand it in a trial court how they might have been over a view they could have a have a hearing we don't do that we're reviewing court so how does that how granite if i was writing the remainder order i would direct that the master make certain additional fin that's true but that doesn't that doesn't answer the question though at some point you may say i don't agree and there's you know he's so he saw this we don't agree how do we apply the did over review in this court well if you conducted then by a form that lacks the same advantages if you will that a first instance court making factual findings ha for example being able to watch a witness testify being able to assess demeanor all of that is not available to what is ordinarily reviewing court on a cold but there were no witnesses here your are now if if if you don't accept my argument that the noble review of the facts is a political here well stop right there though i mean the point you make is is is a valid one i want an impossible wouldn't be practical to adopt a rule of or rather standard view that applied in those situations where the reviewing court is looking at either stipulated facts and or documents and similar forms of evidence and apply a different standard of review where testimony that is subject to questions of credibility are at issue well i think i think that's why in the  the n l r b case versus local three they deferred to the master because there were credibility findings here we're talking about tax returns and bank statements to show whether al gore have you ability to pay or not but it goes further than that because the master found that out too or could have paid a modest sum and then doesn't this case really come down mostly to that and  have to say if that is an aspect of this case that troubles me as it obviously troubled the master i look back to the days when i was a state court judge and i would number of dollars a lesser amount but instead chose to pay nothing at all and often that parent ran afoul of contempt for that very reason how is it that we could count your client simply electing to pay nothing because the question is did it have to change its business practices by either not paying or or not paying an accountant or not paying health insurance or not paying employees all of which would cause a company go out of business that's our argument however i want to get to the endo we should so we should afford sole discretion as to what and who to pay to your client given the limited number of a given him the limited amount of funds that are available to him into the business and as long as there are legitimate business expenses in the absence of payment of which the company would go under that's not the purpose of the osha act to put people out of business that's our point and i'm suggesting that if you remain in the case to the master they make a finding of exactly what he believes al gore could have paid and that's very important because the  second that is absent from the room it's not it it's is a relatively modest amount i don't know what that is it's not four hundred twelve thousand five hundred dollars why why would he need to make such a finding when we know nothing was paid irrespective of what his finding would be as to the ability to pay a certain amount but it's clear nothing was paid because the issue then becomes what is the liability of bill savings and we asli that he is not personally liable he has been found not personally liable for twenty years by three different courts including this court and he can only be liable in a derivative fashion that is if out if the if the master could tell us exactly what he believes al gore could have paid that is the limit of mr sadie's liability as an officer the man's ninety years old he never took a salary from his company he doesn't own a share of stock in this company he's been held not personally liable and footnote for your honour's is colie year when i read this opinion i got t footnote four it was clear to me that neither bill nor nick could be held personally liable and at the end of the opinion we find a personal liability we find requests for disclosures of personal tax returns going back to two thousand and twelve when he wasn't laudable but he can only be derivative we lived for years and that is a very very important fact that i want to leave this court with this cannot be overlooked that was an error of law period and without the finding of what al gore could have paid in the master's opinion it leaves this door wide open the door wide open to assess the entire fine against bill's eighty's which in essence makes him personally liable let me ask you this go back to the original question this morning let's assume that there where we met let's assume findings were made then what what is that review well presumably he would make a finding as to what aisle to or could have paid and how is it reviewed well yes the question is if we would want to review i mean that's a hypothetical  question it may be that the the the show cause provision in the master's order would carry the day after he made that factual finding because then we would have we would have the target it can't be gross income what deference is given to the masters in this particular case my argument is you have the right to know will review but specifically the question of what adequate modest payments are that needs to be decided and i think the best way to do it is to remain to back to judge hammer because he's got all the documents i also want to bring to the court's attention that there is an inconsistency in two  recommendations towards the end of the opinion the paragraph two of the recommendation is a look back i'm sorry a show cause for al  to show cause whether they can afford to pay a fine paragraph three calls for the daily penalty that's inconsistent also paragraph six seeks bills tax returns from two thousand and twelve now under any analysis he was not personally liable in two thousand and twelve up until this court makes a ruling and on and on a finding on the personal liability and again it's derivative he can only be responsible for what al gore could have paid this is not punitive it's supposed to be coercive it's supposed to coerce the corporate entity to pay back and we find out who or should have paid and i'm going to throw out a number one hundred dollars a week which is what al gore took out of the employee's salary and put it in the fund to reimburse the deductible as we all know very high deductibles exist in today's insurance a lot of companies set up these deductible reimbursement plans that's nothing new and that's not personal but if the but of out to a could have only paid one hundred dollars a week that's fifty two hundred dollars a year so do the math it's not five hundred four hundred twelve thousand five hundred so in this bill say derivative liability piece we shouldn't have to go back to see what he had at the time it's what out to a head now it's what bill sadie's has now to pay whatever that number is not seven years ago and i might add that to the secretary's brief arnold or has unfortunately reconstituted personal liability in a full amount of the five bills sadie's who has been found not personally liable by the clear recognition by the mast the undersigned has construed to decrease to apply to bacilli zero bill sadie's and nicholas eighty's in their capacities as officers or employees of have gone and l to are not to have required them individually to satisfy the decrees from personal assets so why would you go back to two thousand and twelve to see what he had as personal as you reserve time replied mr i wasn't allowed to and i see i'm out of t know whole by adopting a will and i would agree another middle ground that that the court could consider is in this future order appointing a special and traditional factors that i think wait pretty heavily into saying that maybe two fifty three just is not the type of authority that undermines the precedent   in towards the decree was the special master required to make some finding with respect to this standard now i don't think i i need not deal with this because you know no effort was made to come up with a lesser figure i don't think if they had to come up with the figures to what he could have paid because they didn't show that they couldn't pay the entire amount and  they were able to meet their expenses and they often had thousands of dollars left over and a monthly basis and they were able to meet their expenses you from having you from bascom a company that was completely controlled by by the to if a company has the means to pay you want to loans they have to show why they can't continue to get those loans before they can just ignore the court order and the  expenses and the personal medical expenses of employees or even health insurance we guarding in the personal medical expenses they claim that they would still be outdoors resources that they use for her personal and medical expenses and it makes no economic sense for her to loan the company so they could be both have the home personal experience we've gotten personal liability and i think it's important to point out that the commission expressly stated it was only finding that he was not an employer in two thousand nine hundred ninety eight he expresses said they were not making many find that he would not be p should be available to alpo and that's what the purpose of getting all of your financial information that this special master recommended checks check stubs bank statements tax returns so i don't know what what else was missing we produced everything and what it showed was that these expenses were appropriate there were no payment of personal expenses it was a reimbursement from monies that the people other would otherwise were put in their pocket from their salary the two there's been no bankruptcy filing take exception to that three out of five of the findings were in favor of my clients so my firm accomplished something in this proceeding so to say we date that led to the respondent shouldn't have had legal