watch when it's eleven minutes you will immediately sit down right absolutely al gore will watch that i will focus on two fatal flaws in the district court's ruling first the district court erred in finding that mr brain reached his fight to sherry duty under a recess section four o four by retaliating against ms robbins by causing her to be cook will address the risk the section five ten informant provision and other issues relating slowly to her turning to the first fatal flaw the district court found that the district court explicitly stated this finding five times in its judgment in order at e r to dash three paragraph number seven e in its answering brief the department of labor or dio well claims that the district court found that mr blaine breached his fi dish or duty for a second independent namely by failing to manage trust funds prudently and solely in the best interest of the trust funds of participants and beneficiaries in violation of section four  contended that mr pouring breaches fi do surely duty under a recess section four hundred four for three reasons first mr brain failed to pursue all moneys the trust funds were entitled to collect second mr brain failed to investigate any of ms robbins allegations against him and third that mr brain retaliated against ms roberts and this is that you are sixty eight last full paragraph the district court explicitly found that big deal wealth failed to establish the first two reasons that's an e r sixty nine dash seventy thus it is clear and undisputed that the district court concluded that mr brain breached his fight to surely duty based solely on its finding that mr brain retaliated against ms robbins just to be clear you're not challenging the finding of liability under five we are not well is cook will address but in other words we are not contesting that the district court improperly found that mr breen retaliated against under section five that our bank yes ok are you going to focus primarily on the two had a requirement of the supreme court in which what role mr brain was playing at the time that ms robbins was placed on a ministry most definitely are ok right  duty to act exclusively to provide benefits to participants and their beneficiaries and to defray reasonable expenses of administering the plan second the duty to manage plan assets prudently third the moreover employee decisions do not give rise to fight do should write ability just because they are in the employer's self interest one may have one may have a negative effect on the plan or its participants and ben aries and that was stated in verses heard rich five thirty us two eleven to twenty six a two thousand case let me ask you this lead counsel i take your point about these four duties and the challenging issue in this case i have a little trouble making quite as clear a line of demarcation as you do in this case so let's take ms robbins out of the formula for a moment and just talk about a hypothetical let's assume for a moment that a an employee  realizes that this employee has the money somewhere and he wants to find out because it's offshore and if you doesn't find where it is they're going to get the money back  this is kind of farfetched but i'm just trying to hot how this blends together so in that situation yes this is an employee but what the employee does and the employer managing this person can have an enormous impact on the value of the assets let's say twenty million dollars were stolen taken to cayman islands or wherever does the interrelationship of the employer and the employee and  potential impact on the funding get us into four hundred four in any way i think only in this way if the and this could happen under your hypothetical if the employer or the trustee in this case in any way conspired with the employee eat to steal money from the funds then that would absolutely bring in section four zero four so when you said earlier that employment decisions and the fiduciary obligations are like the chinese wall i quite so clear it because this one kind of melds in between right i can accept that however i do want to make clear where doc i got into that well that and also to make clear there was no employment decision in the facts that i state it in other words it is true that the employer conspired with the employee so there's that notion but there was no one point to which that ad that element to it let's just say that the question was whether this person should be extreme situation where there is mismanagement a plan asset and the trustee was involved in the mismanagement plan assets then yes one of the trust he didn't do anything wrong except in this case he became aware of the fact that the employee was stealing the money embezzling the money and he was trying to decide the best way to handle the problem to preserve the  that the employee mismanaged plan assets or still plan assets it's the employer it's the employer spike do shiri duty to protect the plan assets so it would be the employer's i do surely duty to get those to do everything possible to get those assets back so let's just say for example that there's some reason whatever it might be that the employer want to take pity on the employee and doesn't want to even though it would help the plan to terminate the employee so the employee couldn't keep stealing  in these unusual situations maybe there's a little bleed over in four of four but generally speaking you've got the four duties and then the rest employment is a separate issue absolutely and certainly in this case and in this case  i didn't see a whole lot of analysis by the district judge on to head theory of any what's your take on that ok and that and that it gets to the point in this case there was absolutely no believe over that your honor is talking about ok so let's talk about the employer had and the bike you surely had first of all trustees and employers where bo when and employer makes an employment decision or a trustee in this case that is a separate hatch and over the bleed over that your honor was becoming up with it certainly does not include an employer decision that ok show employer hat you have and now i'm going to turn to that the second point which is the district court this court in gabriel has very clearly stated that you can not start reading a risk to expand remedies point what do we do with this do we say the injunction is vacated we're sending it back to the district court to do what yeah it's actually quite  easy that needs to happen here is that the court reverses the district court's ruling enjoying mr brain from acting as if i give the for the trusts and requiring him to show the district court's order an opinion when he's was already covered by the consent decree here the consent decree entered into by almost all the trustees and in fact mr brady who wanted to enter into the consent decree in the deal while would not allow it the consent decree gave ms robbins three hundred thousand dollars enjoy any section five k in violations required truly goading section five ten s look this court needs to do is reverse the lower courts the district court's decision because the remedies that ms robbins and the other defendant are entitled to have already been issued and just to be clear in reversing the district court we wouldn't be remanded to give the district court an opportunity to do if you will create a record to try to create for all for liability based upon what one minute for well we'll do our best to help you thank you your honor i think the issue of attorney immunity is very crucial to the ruling in this case it was although argued on several occasions not recognized by the district court the cases cited in my brief stand for the position that attorneys don't have a duty to a third party non client rather an attorney faced with a rogue and insubordinate employee is required to protect her clients in this case the board of trustees and the participants of the trust from actions by an employee that could result in removal or defalcation of trust records especially when the attorney has knowledge of the employee's past falsification of trusts records and is aware that records are being removed counsel me i really want to be careful of this because of the sensibilities of this but let's use a hypothetical again let's let's assume for a moment that the attorney is intimately involved with a trustee the rule a little different in that situation you're on  hypothetical you're furring to simply wasn't the case in this situation for months later temples of the state bar now as i understand it all that implemented the rule was going to that indicates that if an attorney has sexual relations with their client they can be disbarred doesn't play some role in one's analysis of whether an attorney in the hypothetical could potentially be c way your honor to the extent that that is the case i'm not disagreeing but that certainly wasn't the case here ok you're down to one minute you want to say so well certainly my associate ms chang had no such similar situation and we think that your honor you need to really consider the expansion of remedies when attorneys are strictly trying wholly unsupported by any evidence and in fact supported by contrary evidence not even recognized or are mentioned in the in the seventy two page findings that mr rice was only terminated as a result of the independent decision making of his employer with no input from any trustee or counsel all right thank you very much appreciated all right let's hear from the government got a lot of the plate here and i think i can handle it in twenty minutes i'm through again it was your name first my name is clear by roman i represent the secretary of labor in this matter mr brain raises challenges to the district court finding that he preached his duties in violation of a racist section four zero four but really he's seeking to conflate the district court's findings here the district court didn't hold his retaliation that the five ten violation to your question there's nothing to say that the five ten violation here wouldn't support an injunction of removal supported by five o two a fine but the supreme court has made it pretty clear i think out of this two hat theory that one of the first things you have to do in a situation like this is to determine what happened in this case mr brain was wearing when he took the action that he did with respect to ms robinson you are that well with respect to theory mr brain was clearly acting as if it is sure what you're saying but i'm asking you whether the district judge whether whether he said specifically i'm making this determination did he did he undertake an analysis and review of the facts that determined that when mr brain acted with respect to ms robins that he was doing so with his fiduciary hat on yes your honor the district or in the record while the district court made that the whole tenor of the district court's opinion shows that this is a decision about plan administration the there were findings and just facts that the i didn't collections department is fund and in his capacity as a trustee mr brain took actions to influence other trustees to cause them to place miss robbins on administrative leave help me with this procedurally this was an enforcement action brought by the insured and the whole issue was whether or not there had been violations of a recess which happens when there is generally a violation of  district court made some findings yes your honor the district court found that mr brain retaliated against miss robbins in violation of a recess action five ten that separately he breached  section four zero four because by taking actions against miss robbins to further his own personal interest he was preaching his fiduciary duties because he was not acting solely in the interests of the participants in the beneficiaries who his responsibility appointed as a trustee to oversees these trust fund the trust fund and then have this auditing collection department which performs work of plan administration which is clearly a fiduciary duty i mean the definition of a includes discretionary responsibility with respect to plant administration did mr brain argue that he wasn't acting as a fiduciary and in connection with the new these actions or that he was just making because some other kind of employment decision that this argument is raised on appeal by ms not in the trial not that i'm aware of your honor i mean there may be i mean he was acting in his role as a trustee  with respect to this entire time period and so this argument is has been raised on appeal let me ask you this the i know the department took the position that his if you will seeing to it that ms robinson was placed on administrative leave was a breach of the fishery duty that would normally be an administrative duty would it not he was also her employer if you will he was the head person of the entity for which he she worked the anyway to document number two seven four filed one fifteen sixteen and he less out what his duties are he says it is the business manager and financial secretary of the union here and it talks about what he does and it basically what any if you will c e o s of a business entity would do he basically ran the not person are subject to the board but it looks like he if you will was a c e o so if he if this is accurate and that may have is that by taking these actions against miss robbins mr brain was not acting solely in the interest of the participants and fisheries he was acting to further his own personal interest and not the interest and the trends what were those interests in this case is the department views it well miss robbins had engaged in protected activities she had participated in a deal well investigation mr brain was the subject of that investigation and she had participated in efforts to send a letter to the international union not have acted to silence miss robbins for questioning his to give rise to both violations both the arrest of five ten violations that he retaliated against miss robbins and the arrest of four zero for a violation that he was not acting in the best interests of the participants in the beneficiar ministration the decision taken to outsource the work of the auditing collection department to a third party to perform their work that was a decision about who should perform these services to the plan which mr brain that caused that action to be certainly dictates that mr brain was acting as if it do sherri when he took these actions because it was all about planted ministration and then that's what the district court found that there was a violation of you got any case law that you would cite to us where the appellate court has upheld the an injunction like this one where the alleged violation occurred under both five ten and four and for any anything that you think is relatively comparable i can't think of a specific case where five ten in four or four were specifically at issue but i would violations interest in section five ten it expressly provides for injunctive and other equitable relief so your position is that under the circumstances even  a five a scuse me is sufficient to sustain the injunction yes  and the district court quite reasonably concluded that mr brain was not acting so in the interest of participants in beneficiaries when he caused the trustees to take an act of adverse action against miss robbins for communicating with the deal well protected  a substantial motivating factor causation in this case the district court expressly applied a but for standard of causation which was supported by extensive factual findings and that was done with respect to each five ten each adverse action supporting the five ten violations so that the department's surprise ition is that the but for standard is not the appropriate causation standard but this issue was not raised on appeal because the district court express raised a challenge to this trichords finding that she did not have attorney immunity under a recess but the district court properly found that miss cooke does not have attorney liability immunity from the way ability unlawful for any person to take retaliatory actions moreover the district court found that the cook to finance actions went beyond providing legal advice the district court found that some of this cook's actions were the result of her with mr brain and it also found that her advice was motivated by a desire to retaliate against miss rice and miss miss robbins and mr ri mr brains five ten challenge to but for conservation it is in essence just a challenge to the district courts factual findings in the district courts factual findings here were supported by extensive evidence that district court did credibility says for a dozen witnesses the district court expressly went through each of the adverse actions and made just a handful of numbered factual findings with respect to each of these conclusions so challenges are missed could raises numerous challenges in her brief to the district court's factual findings but none of those rise to the level of clear unless there's a legal error by not segregating what actions fell under four or four and the other under five ten tension well the district court did engage in separate in dallas for the five ten violations and the four of four by an election again what weren't what was the record citations for those and i don't have the exact page numbers but i