honour's i let my first year law student daughter read the briefs in this matter she characterized it as the civil procedure exam from hell and i tend to agree with her unfortunately thank you because the question i asked my law clerks last week and we had  sit down in that case was just simply this is boiled down to being a civil procedure we can be resolved as a civil procedure case there are other issues unfortunately however unlike a civil procedure exam this is not merely a hypothetical and it has the very real result at the end of the day after the various what we can tend to be errors in civil procedure or compound one another results in what is effectively a two million dollar death sentence against the small business that being really the nub of the case i would propose a list  whereas questions on other issues to focus on why the judgement in kane two which is the funds claim for unpaid contributions cannot stand i suppose the first  and most puzzling issue is that the court apparently granted summary judgment on liability in two which was not asked far which was not asked for images when the focus was not asked for and in fact in their brief or in his brief mr hyneman concedes that they never asked for summary judgment on liability or a finding of liability of any kind on cain t because they in his view they were not required to now reading that brief and reading between the lines of what the district court did it appears that the only way liability there we have another disagreement because it would appear from judge kavanagh's opinion that in his view liability was over once he denied the petition for question his question really suggests the only way there could have been simply close in effect here doesn't mean it couldn't the only way preclusion had been effected would have been to have given precludes the effect to this alleged finding of fact made by judge kavanaugh at the preliminary injunction or after the poem we believe that to be correct your honor because we are aware of no third circuit authority which would give decision the the issue there your honor is that we are we're not looking and we're not challenging in this case under the steelworkers trilogy standard for the review of an arbitration award the merits of what the only thing that the arbitrator told us he did which is to find that on those facts came builders of those the union fifty three thousand dollars now there is no discussion in the arbitration award of of  a full litigation of the issue of whether kane is a part of the contract we don't know whether the arbitrator made the same mistake we respect fully suggest just counting on they if judge kavanaugh made a mistake whichever falls doesn't it well it's not so much back to we're back to square one we are in the case ultimately back to square one but you gesture are that it's not a question of whether whether judge  you're back to square one absolutely or are that that without that factual determination as to a signatory the the other side doesn't really have any  what subsequently occurred then we do not believe there are with that there was never an agreement as i understand the record between the parties that is so often in fact in my experience almost always happened at the preliminary injunction proceeding in any and any permanent injunction proceeding would be collapsed into a single proceeding for purposes of i now absolutely not your honor and that's the distinction  between our and that's part of the not only was there no agreement that the preliminary injunction hearing would be a final hearing on what started out as cain's declaratory judgment action that it was not part of the union in kane one never claimed to compel arbitration under the federal arbitration act had they done that and there was fair notice then that the court was going to litigate and ultimately decide the ultimate issue of whether kane had affirmatively to arbitrate that is the issue the judge kavanaugh reached in the last sentence of his opinion his first opinion which we suggest was simply not before him this was nothing more than a preliminary injunction hearing the transcript says that both we are challenging both your honor but the fundamental the fundamental argument is there was no basis or it was him it was improper there we are entitled to with jury trial on liability in kane two and somehow someway and we're not even sure how did you wave it absolutely not your honor and women get the one i don't understand these mean you've got a jury trial don't you that was kane won your honor but the cases were subsequently consolidated and i don't know how you can go into a cane too without having to deal with the signatory and authority issues honor there is an issue of the jury trial right in kane one standing alone but we suggest it's even clearer that when the fallen this filed pain too we answered and demanded a jury trial and then at the the consolidation was at the request of the fun's and notwithstanding the argument in their brief now that there were two different cases wanted two different times by two different people about two different things in their letter brief supporting the the motion to consolidate and that can be found in the record they argue that these are two cases closely related which arise out of the same nucleus of  facts and judicial economy will be served by consolidating and so that i think you're judged are you're right that there was an unopposed motion for a jury trial in kane one but you don't even have to get there was the final judgment for purposes of liability why then would a jury trial have been granted in game one well indeed what i heard was there to decide indeed your honor if if the judge kavanagh's denial of the preliminary injunction was a final decision on the merits why did the case continue with all trial greece were filed in two thousand and seven there were amended complaints there were magistrate scheduling orders there was discovery there was all of this if in two thousand and four there had been a final decision on the merits presumably none of that would have happened when the interlocutory appeal by predecessor can i confess i was not counsel below so i am somewhat at the same watch sometimes as has the court but the fact that when the plumber injunction was denied then helsel appealed to this court under twelve ninety two way not twelve ninety one if it was a if everybody knew it was a final decision on the merits it would have been twelve ninety one appeal from a final judgment it just seems to us that whether you call it procedural whether it is necessary to reach the beacon theater is roebuck issue of whether a prior non jury determination can take away your right to jury trial  contemporaneous in a contemporaneously pending jury claim whether it is the failure of the district court or the use of office of issue preclusion being i think one of the things that one of the few things of henri's agree on here preclusion is a matter within the discretion of the district court not only did the district court not explain any exercise of discretion in that regard sufficient to permit meaningful review it didn't even tell us that that's what it was doing how we got to liability in kane to is simply on this on this record a mystery as frankly is how we ended up with summary judgment against us on our first party claim over against the union and mr moscow which the court did not deal with it all but we think it's fairly read in in his position that i've already decided all of this that would also take care of the third party claim if they're still on any discussion there again your honor i see that my my my time has expired  the bottom line is that cain cain one can stand for all the reasons we've discussed in the brief but regardless of what happens with cain one the virtue the judgment in cain two must be vacated and the case must be remanded we believe for a trial on the merits of both liability in damages but at the absolute minimum for full briefing consideration and decision entered into in two thousand the union sought a grievance arbitration under the contract in two thousand and four the employer went into federal court to attempt to block it in an injunction proceeding there was one issue for the court to decide footnote one buckeye versus court carnahan yeah it did the signer have authority to sign the contract and the court made that finding in your favor the cause of the testimony of mr moscow correct no your honor i don't think so i think the court had before ate a contract the complaint filed by the employer i mean if they said the one witness you put on was mr moscow correct that was the wit union's witness and there were two other witnesses but there were also but he would walk in he was the critical is signed to see well i'm not going to quibble with the testimony says i i'm going in another area follow me sure are you familiar with the case of new jersey building laborers district councils versus that case that mr muska was under indictment in the eastern district new york correct yes sure it is also known at least as a matter of public record and this is all you know fraud indictment this is all union stuff yes wrong it is also up nolan as a matter of public record that in  time looking at the data here he pled guilty in two thousand and eight he pled guilty i've lost track of mr moscow frankly well he i was your witness in this case he is one of the three witnesses your honor but what your home i apologize following sure he pled guilty and has been steps if we find for some reason other than what i've just described that this case has to go back to judge talent off for another hearing or a trial this would be highly relevant impeachment evidence  you to put moscow on again i would i would assume sir you're our hearts but that's all i wanted to know that's assuming the funds would again go in and seek contribution  rehearing she trial the key though i think is not mr moscow or the other two witnesses it's the employer it is undisputed now it is a finding of fact signed the fall collective bargaining agreement in its pleadings everywhere at the beginning of this case it said and it's witnesses say all they did was sign an order judge kavanaugh said what counter to that is spencer is sitting there with volcano active bargaining agreement book not a single page everything spencer testified to is belied by the simple object of fact of the collective bargaining agreement that he signed the testimony of spencer in moscow is that there's a series of telephone conversations with everybody staring at the book you but they're saving he says there was a form the form was the book that he signed and the moderate is on the phone with kane spencer is on the phone with pain moscow is on the phone with cain they're all looking at spencer and moscow as an objective fact or looking at the ball your honor i think whatever mr mosque is pedigree is and history is it's irrelevant to this case i'd also note that this case involves not local three twenty five in the northern district council of labor's the southern district council which is mr mascot was a witness but he's not one of the parties in this case but going back to what i think is the the essential element here is under buckeye judge kavanaugh had the obligation to make a determination of the authority of  there would be a right on the part of who jury trial absolute once they assert the factual issue that there was not authority to sign the clara tory judgment act allows the determination of the signers authority and in this case there was a hearing that would not have been allowed on the plume an area injunction under the norse laguardia act so this case is really a agree or honor it and i think that was the judge's intent and that but the judge did the hearing he had a full evidentiary hearing and that i was ames by the parties that that would be the end of things that would conclude the record that that would constitute a hearing for purposes of a permanent injunction or any declaration by the court to the correct john and your honor but under buckeye it was up to the judge to decide it it makes no sense  honor to have baka i say the court must decide authority before it goes to arbitration the have a full evidentiary hearing and then send something arbitration to resolve what bach i tells us would be fraud the execution the inducement the allegations of a contract interpretation if you accept the defendant's argument what you're really doing is cutting the legs out a bucket you're taking away arbitration to resolve these things because you would be left with going to arbitration and then having your return after a full hearing in this case your honor there was a full hearing there was no right to a jury trial it was equitable in nature there was no timely demand for a jury as in part in it and the district court made a finding on the record that as a matter of execution all the contractual defenses and his due deference in kane to the funds action is consolidated now at that point the court has already decided liability because keynes a signatory to the arbitration removes all the other defenses so the only issue left is damages and i agree we are relying on offensive collateral estoppel finally or on or the issue of damages relies on the combes burden shifting only evidence was the audit all the motion practice all of the strawberry went to the issue of damages in this case the audit result gives us the only evidence of the damages employer did not despite its obligations under arrest or to keep records have any records of hours work the auditor did a fairly conservative estimate of the damages issued as audit was confirmed by the court your honor i think the reality is this case is simply a case about an arbitration proceeding and how the issue of authority under b how it gets resolved in handling a case of attrition if we accept the friend it we're not taking seriously the court's admonition to the district courts to resolve the issue of sign or we're merely allowing cases that go to arbitration after four hearings and then coming back later for something more that's not what the federal arbitration act was it was intended to accomplish it's tended to accomplish a  encourage many of arbitration as a simple mechanism to resolve disputes and in this case the district court followed through with that and it's the defendant that has of a great dispute a factual dispute at the preliminary injunction hearing as to whether or not a contract had been farm and there is case law on the third circuit that's as when there are disputed issues of fact at a pr injunction hearing that there's not and tight on a party to summary judgment without the opportunity of the other side to present additional evidence and is there any indication in the record that that cain was offered the opportunity to provide additional us to your knowledge not that i'm aware of you know any other questions thank you very much  starting with your final point she just also the point you're smith made this is at the risk of being flip and an issue of the quacks like a duck rule this was a preliminary injunction hearing that's what the court said it was that's what everybody understood at the be as with the paperwork says it is it's what everything except that unfortunate final sentence in the court's two thousand and four opinion says apparently apparently judge kavanaugh didn't understand that this was more than a plumber injunction hearing and because he couldn't have a preliminary injunction hearing consistent with marshall so whether he knew it or not he was having a final trial on the merits of the declaratory judgment action which just respectfully your honor makes no sense whatever the union could have solved this entire problem by counter claiming to compel arbitration and invoke the federal arbitration act and your honour's absolutely correct had they done that we would have had an opportunity to invoke our right the jury trial under the federal arbitration act whether they just didn't think of it whether they wanted to have it both ways because they wanted to get the arbitration before there was a final judicial determination of contract formation i don't know i wasn't i'd have you know said in his opinion that they're going arbitration perhaps they felt they didn't have to do a motion to compel counter claim instead of moving to dismiss the declaratory judgment action which is what they did they would have counter claim and said judge not only should you not enjoying the arbitration for all of the reasons we're now hearing about i think if you read judge kavanagh's two thousand and four opinion carefully that final sentence says under these facts and this goes to chief judge to recuse point our brief but national land an investment company against specter for twenty f second ninety one at one hundred the fax after final hearing may appear of different substance and texture mr moscow who was in fact indicted as part of the gambino racketeering indictment in the eastern district of new york pled guilty at the end of one to two thousand and eight and was convicted and sentenced in january of two thousand and nine by judge weinstein in in brooklyn and clearly if we have an opportunity to try this case the issue and again we're right here at talk about the facts but whether they go to contract formation or in cain to or cain one or two or third party claim over in cain to against the union and mr masc the jury usually could fine if they decide that mr mosque is a crook whose testimony is not to be trusted they could determine that he had forged the contract document they could determine that he had misrepresented what it was with actual knowledge that mr spencer had no authority to sign anything other than a dot a document governing the two guys that everybody agrees mr mosque in mr cain discussed and that indeed again leads us to you know the other facts year which is that he brought one guy the guy worked half a day disappeared and they never heard from the union again in fact and this brings us to the damages question which i would like to to touch on just briefly mr hyneman talks about the combs analysis and the fact that  keep payroll records it is undisputed on this record that one hundred cents on the dollar of what the funds are seeking in kane to the years with work performed by sub contractors of cain who under a term of the collective bargaining agreement that no one testifies was ever discussed between these people would preclude came from having subcontracted covered work to non signatory subcontractors none of it had anything to do with work that cain did itself and failed to keep records concerning further and my final point on this is the co analysis permits and inference that's all it does it says if if we if we don't otherwise have the records to do this we will let the fun come in and try and extrapolate or prove its damages other ways and permit the trier of fact to draw inferences from that evidence that will enable them to come up with a damage figure drawing an inference is by definition a question of fact for the trier of fact and that all that happened in this case was that kane challenge to the reliability of the methodology asked for a dauber hearing was denied our hearing judge kavanagh found again what was it doing it was holding exercising his d'albert gatekeeper function and the only issue for him there was was this methodology sufficiently reliable under d'albert to go to the trier of fact to permit the trier of fact to decide whether or not to draw the requested inference missed him mr matthews let me ask my colleagues of the h and the question good thank your on we thank you very much case was very well argued we will take the case under