waiver of that by joel common law argument will leading to whether or not thirteen ninety two should be the exclusive remedy here three points bear noting first the district court in its holding in its in its opinion specifically ruled on the question of whether or not common law could be applied to the case at hand and the court reached the conclusion that in fact it would be appropriate to utilize special common law to impute which all liability onto a separate organization under extant six circuit case law the fact that the district corps analyzed that decision in its opinion indicates that this is a live issue for appeal and for the courts reference i'd refer to chambers v adams two thirty s three d thirteen fifty seven and lane v bell seventy two foot reason that when i read the lower level briefing i don't see an argument from defendant or from sorry from the contractors prior counsel that this is the appropriate standard this is what should be applied i read it almost as assuming that they are just thirteen ninety two they're just a resource remedial scheme so the fundamental case law of fundamental law is addressed and the argument is made in the in the loop in the previous briefing that applying thirteen ninety two there is no intent and trucking which are liability should not be imputed to contracting so i think going to the case all we refer to are a public reviewing the fact that that remedial mechanism that a recess a hole was reference was applied justifies consideration of that argument on appeal a third point also bears in what noting that is the sixth circuit has not addressed this very important very novel question of law and that is whether or not federal commonlaw success or alter ego theory should be applied in the context decision but what's critical about finland is not so much the holding but it's the rationale played by the majority in the dissent and philly actually presents a very unique set of circumstances and that if the majority was looking at this case and the dissent were looking at reach the same conclusion and that is it's not appropriate to apply federal common law and in finley the holding alternately was given the fact that in that case the majority over judge keeps dissent determined that it was appropriate in a single employer pension plan situation under to go to federal common law to impute success or liability on a sham company i mean to the finley decision you read through it it's made crystal clear that that was a sham operation it was not an arm's length transaction the intent in that whole thing was to avoid those pension liabilities and because of that the court was faced with a choice either apply the common law and give the p v g c a mechanism to impose that liability on a wrongdoer or stand back and do nothing and the reason they have to stand back and do nothing is because the risk of the a political provisions of the reso that applied to the single employer plans did not give the pv g c any avenue to impose liabilities on a sham transaction or sham company now here this court is now faced with a hobson's choice is a completely different set of circumstances and that is because what judge mckeague suggested in his dissent have been in this case the p b g c lobby congress and secured the multi employer pension protection a member act which presented significant more protection significant more remedial measures for a pension fund to go after which our liability of a sham organization and that's through section thirteen ninety two section thirty nine hundred two did not apply to the facts that were live in  here the funding greece we could go after contracting under section thirty nine to two and the final also contends that they should when under section thirteen ninety two analysis because of that this court is not faced with a set of circumstances of saying we need to go to the federal common law we need to resort to federal common law or allow potential wrongdoers potential sham organizations to get away scot free unscathed that's simply not presented when we're dealing with  all liability in multi player pension protection i'm sorry under multiple or engine plants and for that reason that distinction between family in the presence of the circumstances this court should not resort to the federal common law should not take that extraordinary measure that said if the court decides to go to the federal common law the district court under finley now used the wrong federal common law the family court does not use the animal or be like test for alter ego success or status the the family court says we're going to take a hybrid approach of labor and employment case law and in the situation in may i think that the holding and how it's limited just analyzed and it's argued that alter ego status should up should not be found again they also analyze thirteen ninety two there is nothing but you refer to switched position bit from what you were record but again we say in arc in our poll a briefing the fact that given the equitable nature of this case given that this is a novel issue of law it's appropriate to consider this issue of the law in this case when you argue that they argued in the alternative are you saying they said well here that here the n r a test factors one two three four five here's how we win under those and here's how it would play out under thirteen arguing that it's the alter ego standard should be applied here's what it is we're suing that it's the court's going to apply this to a test and the case is just not close and here you go to court to get up there's no alter ego status here because there's no decisive continuance these aren't the same companies they're not substantially identical i think that was in the mindset of before the lower court but be that as it may this issue is very important it affects a lot of folks other than this the parties in this case it sounds just a little bit to me like there were two possible tests and you briefed the test that you thought you would win under can you thought you were going to win what you're saying you thought you were going to win before the district court under that test and then you didn't and you'd like a different test but the other thing is this your honor that finlay came up after this case was briefed especially before the district court before the district court had an opportunity to rule and finlay comes out and says under a recess we're not going to apply the n l r b test we're going to apply a hybrid approach of labor and employment law and when they do that they will all we decide today is that if a sale is not conducted at arm's length transaction success or liability camp life they're hesitant to impose successor type alter ego type liability on a bona fide corporation that's new law that did not apply before this case was argued for the district court for that reason that standard should be applied to this a lot of he'll your argument is you get the benefit of that ruling we should remand to the district court to apply that test that can be nice to get your views on a brief that extensively and the ultimate test before you today on de novo review to reach this conclusion is are these the same companies is there disguise continuance is this a sham organization i refer the court's attention to the ninth circuit case that's referenced in finley and that is resilient i'm sorry like a floor covering there the court says we have to apply the alter ego standard consistent with the multi player pension protection act and it goes through a construction industry analysis persuade and you can persuade if you don't listen and try to be responsive to the questions i'm attempting to answer your question or not if you enter rup and don't permit the question to be addressed to you and dollars to the question right now you're out of time so we'll hear from your opposing counsel thank you which essentially told judge murphy here's the alter ego test which he adopted citing the all the all coast test case and that's the case that judge murphy cited too in large measure when analyzing the factors set forth in that case so it is an invited error i agree with my opponent that the following to argue that it should succeed on either theory either the thirteen ninety c argument or under strict alter ego i think that this was a fully developed record i think judge murphy's decision was well reasoned even though i wish that he  would've found for the fundamental all the factors but having said that i think these cases are difficult to prove because they are facts sensitive and there are extraordinary facts in these in this case that caused him to rule the way that he did and i ask that you affirm his decision unless you have any questions all rely on the brief i think that i've covered everything that i wanted to say except for one where i just wanted to point out  that judge murphy's or opinion in order at page eight has a heading that talks about the action ability of alter ego cases under the m p p a and the appellant did not address any of assault under the multi employer section of it must be done in a manner that is consistent with that and to be consistent with that act there's a number of factors that the district court found in favor the fund that are just contrary turisas fundamental goals and fundamental policy statements for instance common ownership he took eighteen percent commonality to say substantial identicalness between those companies the company's ownership is eighty percent different if you go to risk become a control group ownership isn't a question until you have common ownership of eighty percent fifty percent  e those tests for coming control for the control group when that's the only factor as opposed to when the court is using an accumulation of factors that would be under that specific statutory test where you're only looking at that what i'm saying if you expanding this certainly the individual factor should be applied consistent with the rest of the other thing is this looking at the familial relationship arista has attribution rules a wife's stock is imputed back to the the husband and so on and so forth minor children that's attributed back to the parent here we have adult individuals that are striking their own after dad's business goes belly up and is bankrupt your arguments focus on the substantive decision i wonder if you have arguments with respect to the remedy the damages damages your honor the res judicata issue is specifically i think that's well briefed and what i comment on is it's very striking and obscene that trucki liability was one point two million dollars and you go through this process where all you're saying is of the same entity but now it's three was it three point three million dollars or three point five million dollars i just wonder if you know eligible for discharge that would make i'm not the bankruptcy people that i hand out handle that they chose to look at that from the fact that the bankruptcy judgment was a final order on the merits and therefore is claim preclusion a raise due to cut has it raised to acknowledge a fact but what i close with is this this case this company is a very small organization it is not the same thing as trucking it has very it's minor in comparison to a statewide company now a couple guys just trying to make ends meet this case is important to them if if they lose this case that company goes bankrupt there is no other choice but i was asking are they eligible to file again they will file bankruptcy they will file bankruptcy they will be out of business they will be out of a livelihood three people will have no careers