good morning good morning marty katz from shepherd mall on behalf of new image i'd like to reserve five minutes for rebuttal please i want to start with the point of agreement between the parties here and the point of agreement is is that if this circuit the ninth circuit decision in rosie's transfer remains good law then the district court erred the district court would have jurisdiction over this case and there should be a reversal obviously with remember back to the district court the key to addressing that issue is how to frame the issue that's before this court because we frame it one way any azzi frames that another way and i think the framing of the issue is dispositive we believe that the issue is whether or not a district court has jurisdiction over claims of misrepresentation or declaratory relief when they are brought by the plaintiffs here new image in response to and to seek relief from claims whether it's by the defendant or by a third party or accusations or accusations of breach of a collective bargaining agreement framed that way there would be jurisdiction under rosie's transfer ok but we have to look at tax time now that agree so they make three principal argument why don't you put the frame in the two opponent proposes you give is your framing what they say is the issue is whether the district court whether plaintiff must bring a claim for relief as opposed to the plaintiff bringing a claim for misrepresentation or declaratory relief to combat to void the contract not to combat anything to declare the contract is void it could be that or it would be that's what it is well it could also be for damages right for example if it could be a declaration the collective bargaining agreements could be enforced with the exception of what was misrepresented but i don't what i don't want to say that that that the result has to be we also seek damage we seek a declaration that the residual provision is not enforceable that's the subject of the misrepresentation and that we're entitled to damages on the for the misrepresentation because of what my client had to pay to the third party pension plan right mask of course you may not make the station but is your claim as judge kelly just put you that you declaratory relief is to void the contract or is it a claim that the representations that there would be no residual payments was a part of the real collective bargaining contract so that you have to read both the oral representations and the collective bargaining contracts to gether to determine whether there's an obligation is that of a frog and vitiate of a contract claim or is it a claim that the real c b a contains your position it's more of the latter but to be more precise it's to say that the residual provision of the c b a is not the collective bargaining unit here that this court or the federal court below have subject matter jurisdiction under section three a one way which can first jurisdiction only over suit for violation of contract while a federal court may in the course of resolving it is concerning alleged violation of a collective bargaining unit adjudicate the affirmative defense at the contract was invalid and has no jurisdiction to resolve such a contention independently of rather section three a one age or a section does not lie so that's what they say and textron in this case seems to fit pretty closely because new image allegedly failed to make residual payments both to the motion picture industry health and pension plan and and i ought see a certain claims against an image for intentional on negligent met risk representation and declaratory believe so tell me why that is a supra contract violation ok so the key i know it's a long question but let's start with the key difference in textron neither side claimed that the other side had violated the c and no third party had had claimed or accused either party of breaching the c b a one of the party he's wanted to assert a claim for declaratory relief so as to get guidance for the future so that they could violate the provision post spectacle that was the issue and that was the only issue in tax fraud and so what the supreme court is saying there is that neither side has claimed that there is a breach a past breach and that's the issue if there has to be it what our view of textron is is that there must be an antecedent claim or accusation of breach it doesn't have to be alleged in the lawsuit it can be alleged informally we've cited many cases that say that it can be an accusation or a claim asserted by a third party like the pension plans which is what happened here twice my client got sued twice and misrepresentation you cannot raise as a defense in a claim by a pension fund under the ninth circuit law so there are only relief for having been duped into the contract maybe maybe doesn't deal with back pay but but maybe you could but there's concurrent jurisdiction over three zero one so so and under the n l r b you can't get compensatory punitive damages so you can't get relief for the wrong so a party that's duped into a contract just can't get relief that and that's why the textron rule really doesn't apply here because in texas run nobody needed relief and why did nobody need relief because there was no dicta in text from what this get to the point how binding is that that to us i don't think the buy i don't think text run is binding on this court at but i mean it is if you were presented with a textron issue where there was no antecedent claim or accusation but to me it's not relevant to this dispute because here there is an antecedent claim of violation is not exactly would just just as you can claim i wish i could divine the answer to that i'd i'm not sure exactly what he had in mind there i know that the court does not mention rosie's transference decision nor does it mention rose's transfer in granite rock and so  you are faced with a claim by iatse that somehow the supreme court intended to implicitly overrule rosie's transfer without ever mentioning the case on a case that was factually dissimilar on the very key issue that is the core of the textron decision namely that there was no antecedent claim of a past violation of the contract so your position is that rosie's transfer lives with his no incident and claim of a violation rosie's transfer lives where there is an antecedent claim correct and that would be consistent with the decision of the seventh circuit in j w peters vs bridge of all of the cases that have been cited by both sides that's the one that is post textron that addresses the very issue that before this court and the seventh circuit came out the same way that rosie is transferred obviously rosie's transfer was before textron when you added the word accusation because that issue was addressed in the supreme court in its opinion because the government joined with the union and filed an amicus brief and in that opinion  the court says by its terms the provisions confer federal jurisdiction over suits or revile ation of contract focusing on the breath of the word for the government in its brief argue on bach precedent in miller v gammy justifies the district court's assertion that the supreme court in textron has abrogated roe say transfer that which is a three judge panel opinion and we must follow textron yes miller counsel in his brief just quotes the one phrase in miller about irreconcilable conflict we think there's an irreparable sal will conflict between rows a's and  decision even though the supreme court doesn't say we're expressly overruling a prior case and counsel and so that miller is broad enough to say there's a flexible approach in the circuit to what three judge panel as this has as w district court judge asked when looking at what the supreme court has done since rosie's transfer and this court is applied miller and four or five cases since then which we didn't cite in our brief overruling prior panel decisions but the problem with they're claiming that the trust fund had sued and they'd settled they then claim that the trust fund had made an additional claim file a lawsuit that was withdrawn so the status of the situation at the time this lawsuit was filed in two thousand and fifteen is there's no the complaint doesn't refer to the fact that there's agreements disputed just says i see my client claims that these residuals have to be paid so you're position is that at the time this actually filed there was no accusation which would raise grievance but in response to the complaint we said if there is any action it should be arbitrated so the record reflects the fact that there are counter grievances pending you could call them accusations but the reason i read the language from the supreme court decision was the court was very clear that merely because there is a cut is a is the complaint concerns a violation meaning an accusation of a violation doesn't give  unless the plaintiff alleges a violation which they didn't do here and there's a practical reason for that actually to practical result the plaintiff alucard her relief action alleges that he is accused of a violation correct future specifically new image contends that the residual contributions provisions do not apply the new image and that i see is obligated to indemnify or otherwise compensate new image this is that record of three twenty three for any liability occurs in the future to the plan arising from the nonpayment of residual contributions and for the cost of defending against any further lawsuit from the future so there are two problems here one is i don't think the court was s that simply because a union steward or union officer files a grievance but that somehow creates an accusation that then allows a plaintiff to run off to court to say the contract is invalid that would not have any  second jurisdictional reason which is peacock versus thomas so what peacock holds is that there is no federal jurisdiction in a subsequent case because you're contesting the earlier case or raising an issue about the mr that was settled and gone so peacock says that you can't bootstrap federal jurisdiction in a subsequent case because there was an earlier federal claim on which the co which by way of a lawsuit that was withdrawn and we don't know anything more because we don't know that there was actually an audit or your point is that the the complaining self claims the risk of trustees their claim for future contributions you know what happened what the complaint alleges is that they settled the first lawsuit with a secret settlement then there was an additional claim brought for some more years by way of a lawsuit it was withdrawn pending an audit and we don't know anything more in the complaint as a claim was made pending all of that the claim was made and it was withdrawn pending an audit and the complaint doesn't allege that there was no it was completed or anything furthe smith is only the claim for that tort is we would not have entered into this but for your fraud it's not we would not have entered into just that provision we would not have entered into the contract and that's why this is a t it's intentional misrepresentation and the negligent misrepresentation so i'm trying to understand their best argument just in terms of how they're countering that and  he and the question i think was asked by judge kelley of appellants counsel that well you could have filed a claim which you could go in front of the board and you could do death and i said but no that we couldn't get damages there or whatever just  sat how does that factor into this young vets exactly what ground rock says that's exactly the problem he is probably right that the damages before the labor board are limited but he could have gotten relief befor the labor board because had they shown to the labor board that they would not have entered into this but for being duped into it the labor board could have voided the contract and he's also incorrect because there are a few cases that i'm aware of where the board has ordered a union to reimburse an employer for expenses incurred because the union either duped or forced the employer to sign a contract that would not have agreed to now i'm not saying that's a usual remedy but it is a remedy so in that if it were in the in front of the board then the evidence about how they never paid the whole time and what this alleged oral agreement was would be considered to determine if they were  i want to be careful here because this case is important result is important here in that the labor board has the jurisdiction to deal with these fraudulent dusun type claims on both sides a union could raise it and say as it did piss into signing the contract tek the u a w went to court rather than to the board our view is that new image should have gone to the board and said in contract negotiations you lied to is you do this that's not bargaining good faith we want you to live aboard to rescind the contract and or damages the council's correct they can't get punitive damages under no circumstances but they could get other damages at least get the contract voided and i want to go to grant rock because i think  in very well here at this point so would grant rock called was a contract claim against local two eighty seven that's not the issue here the other part of the case was a contract claim against the international union claiming it was  is it's a narrow question let me just read it because it's just misquoting the decision in reading in reaching this conclusion and again i want to be careful what the supreme court said was we're not going to create a new tort of tortious interference for a lot of good reasons in reaching this conclusion we emphasize that the question before us is a narrow one is not whether the conduct granite rock challenges is remedia whether we should augment the claims are the available to grant rock and justice thomas goes on to say there are a lot of alternatives available to grant rock labor board grant recording has substantial judg even speculates that the state law tort here remember the claim here is only a federal claim based on three a one they allege no state tort claim and no jurisdiction or section thirteen thirty one you said several times i want to be really careful here because this is like really important and so want to hear things like that i'm thinking ok so publishing on if are you saying this case needs to be published and if so obviously your you have concerns about unintended consequences coming out of it and so i'm really wasn't exactly sure what you were saying there i'm saying that w explore tort a state tort claim is not saying it's valid to say you didn't explore that you have the right to proceed in your alter ego claim grant rock against the i b p and he said you could have gone to the labor board but you didn't and i think what justice thomas was i think what he's saying was we're not going to create torts under the guise of section three a one because it interferes with the national labor relations board regulation and i want to be clear here again that in granite rock the issue was the conduct of international union in telling the local union not to abide by the contract the international didn't have a bargaining relationship with grant rock but here knew him each had a bargaining relationship with  including intentional interference or negligent or intentional misrepresentation washes a case out you know the district court in a footnote said it did need to address that and secondly what they were seeking in this case was a declaration that the contract was  antecedent claim of breach and roses transfer i think that the dish the issue with granite rock is and it was correctly decided with by your panel and by the supreme court was that the party in granite rock wanted to allege a new federal tort against a third party that was not defensive to an antecedent claim of breach and that's the distinguishing factor here i get back to it's how you state the question if the question important discussion if there is an antecedent cleaning claim of breach or an accusation then can a party as a plaintive sue for either declaratory relief or misrepresentation to defend against that accusation or the claim if that's the question then granite rock is irrelevant because it didn't involve that pattern and the same is really trying to make it look different make it not look like a duck i think with all due respect they are stretching techs running granite rock beyond the facts of the case beyond the holdings of the case and beyond the whole intent of the cases i mean textron was clear as day that you must have an antecedent breach that was the crux of the case no answer no and an antecedent claim or accusation of breach no jurisdiction granite rock really was a different issue as the creation of a new tort it had nothing to do with combating a claim or accusation of breach that is the difference and so i think what that brings us to is back to the discussion that we've had  you had with both counsel about what is meant by accusation because that to me is really germane because when you heard opposing counsel's argument he's saying there's no pending case well that's never been the rule the issue was is was there a prior claim or a prior accusation in terms of accusation versus formal claim in our brief at page twenty nine we cite all sorts of cases that the accusation need not be alleged in a formal complaint it is enough that one informally accuses you of breaching the agreement even with the accusation that still be made ok so then we get to that liability we don't know if it is or not it was settled for substantial dollars and that's alleged in the complaint front of the district court and the second case you see he and then the need for those loans or damages yes for those dollars that were paid that were actually paid by my client my client is out it's been harmed if there is an antecedent not only a claim but an antecedent liability from the first lawsuit from the second lawsuit council stretches a little bit to suggest that the second claim was withdrawn and you had that dialogue the claim has not been withdrawn the lawsuit was withdrawn pending further discussions the accusation remains and the third part work council i think overstepped a bit was to say that there is no allegation in in the district court complaint that iatse itself is making a claim so iatse is making a claim for the difference between what our client settled with the pension