thank you your honour's and may it please the court and i too regret that we're not in richmond today this is a strange format for arguing but i will give it my best the issue of the scope of deference accorded to an arbitrator under the federal arbitration act is not new to this court it's not new to common law it flows out of the u s code section ten a of nine us say but this court particularly iran or judge king has dealt with the issue before in in patent versus signature insurance a case that was cited in our brief and ironically in that case the the district court judge that did not vacate the arbitrators or prior to the th circuit then doing so was judge leg who is the arbitrator in our case and in the patent case as this court made clear while there is broad deference to be accorded there there it is not absolute deference and among the reasons among the several articulated reasons for vacating an arbitrator's award are two that form particular relevance here one if the award fails to draw its essence from the contract or two if the award evidence is a manifest disregard of the law and the court looks at questions of law as you know do you know so drugs essence from the contract what does that mean that means as this court explained that the result is not rationally inferrable from the contract and here as i'll get to shortly the payment to mr ball she simply was not manifest disregard of the law means that the arbitrator understands and correctly states the law but then proceeds to disregard it again that comes from your opinion in patton judge  here arbitrator legge did so by understanding and correctly stating the summary judgment standard under federal rule fifty six dollars in fact going on to articulate that summary judgment lawyer did you all agree that this would be handled pursuant to principles of summary judgment well we we agreed that the parties would submit motions for y all agree that he was a fact finder in the context of this case like a bench trial the had there been a trial he was the fact finder but in other words it right well he was he found like on this contract that this cap was not in the contract but it was missing because of a mistake or something right correct he did make that the contract that is correct there was no dispute of material fact here that there is no cap written into the contract ok mr sluggards oh what is the contractual provisions providing the  error so i don't see how you can say there was a manifest disregard of the contra well it's the contract he you just don't like the result respectfully i understand your question but i respectfully disagree the arbitrator did two things in he did consider the contract he did two things st he said there are other reasons why oracle can change a promise bonus and those are summary judgment is too blunt than instrument to deal with those and so he found that what he was going to look at only at the summary judgment phase the only thing he he agreed he could look at was this issue of correction of an administrative there are so he narrowed it to scrutiny of the correction of administrative error but if you look at that in the context of what is an administrative error and whether what oracle did here was in fact correct an administrative error that's where the manifest this regard of the laws the mere fact that oracle i concede oracle retained for itself the discretion to correct an administrative error if they promise baulch x in the contract rights why as a typo they can correct that if they promise a particular formula and the computation of that formula comes out wrong  inaccurately they can correct that that's an administrative error and what is there is there any evidence in the record of the oracle intended the cap yes there is  well the starting point i don't mean to be glib about this but the starting point is if the language of the contract which doesn't have a cap and then write the white got right or  disregard it not not the original onisim that the count relying on but actual evidence that this wasn't an administrative error but you are saying is i'm understanding you now that it's sufficient simply to rest on the absence of a cap no i'm sorry i didn't mean to conclude there the starting point is the absence of a cap from there comes scrutiny that took just over a month and we cited this throughout the our brief that took just over a month of scrutiny with nearly a dozen oracle people including in particular ed spreads and who ultimately had to approve the contract for signature by oracle before it prevented to mr ball and ed spread ben you may recall is the same gentleman who ultimately applied the discretion at the end which i'll get to in a nd but so multiple layers look at it multiple realms of scrutiny look at it within oracle specific questions or ask nicole hoffman specifically who's charged with looking at this ask was there are supposed to be a cap and he or she specifically asked if there was supposed to be a cap we have to alert people there are a gin zero is another gentleman who's looking at it and he specifically says and this is if page two  record quote for dave his plan does not have a cap so any reduction would have to be via discretion ok but wasn't there evidence of the top layer there was there was testimony no side there was no once there was a template error that affected more than just mr bottoms contract yes and the way this plays out and the reason why i suggested it to an appropriate for summary disposition is all of the documentary all of the contemporaneous documentary evidence which is not only of a contract but internal emails at oracle that we obtained through discovery and that are all provided in our record show that the cap not only was not in mr ball shoes contract but there was no mention of a template error there was specific inquiry why is there not a cap and there is an explanation provided contemporaneously that mr baulch is what's that here is the answer to that one your honor that and ours is not the st case to have that situation but as we argued in our summary judgment papers as well as in our opposition to the oracle summary judgment both of which are part of this record for if judge like had granted us summary judgment in arbitration and we didn't appeal has the nihil of our summary judgment but had he granted us summary judgment it would be because the four corners of the contract are clear and unambiguous and what we argued is basic said oracle's position is not that the contract contains a cow but that the contract needs to be read to have a made virtually omitted a cap that this has to be determined to be an administrative error and cat here shouldn't there been it won't been one and that's after the fact that post discussion is not evidence as you suggested this scrutiny leading up to the signing of it what was somehow not an  be the discussion contemporaneous way of preparation by oracle of its contract to submit to mr ball included scrutiny by be very groups that would have imposed the cap or put in those are both post op i and so they don't actually supports you do that they support they feel they theirs they do support me your honor respect are they post top answer that question st yes yes a question of what that is and was this one those were the two questions you said is there and what are we looking at so the arbitrator determined that this was a ministry of air is there a definition section in the contract tell language my looking at black's law dictionary to tell me what i'm looking at to show that that's an unmistakable legal error the answer your honor is that i can't point you to a provision in the contract because there isn't a definition of administrative error within the contract what i can point you to is what the purported correction was what judge let what arbitrator leg decided was the correction was payment to mr baulch of what would have been three hundred and three percent his quota and at three hundred and three percent is explained post facto by saying so there should have been a two hundred and fifty percent of his quota cap in the contract so this is really that plus an additional fifty plus percent which is fifty thousand dollars in change additional that i add scriven will explain my decision to do by saying oh i decided to give him essentially a tep because we took too long to pay him that defies crystallizing another example of saying the post op discussion you think makes it unmistakable error that contract that oracle has an oracle has certain sick care any concerns about it so we we agreed to their suggestion that it be sealed with just a contractor sealed well information about this particular will believe that there is some classification associated with this contract that required the ceiling of some specific identifying information i can't answer it better than that i just don't know  did not raise it below which is why the district court may no findings on the score for this court to review regardless his challenge fails and while i am happy to discuss whether  reasons why a judge lake correctly found there is no genuine issue of fact i would emphasize that is not the standard that must meet to prove manifest disregard of the law must prove that the judge lake identified a clearly defined and applicable rule of law and then chose to ignore it and propounding his decision that's just quit s willfulness standard so it's not and has the difference from an appeal from a summary judgment courts have acquired it characterized it as requiring a willful flouting of the law that is recognized by  to the point of we did not do that well your honor i would respectfully disagree and if i may explain so there are two options here the one is is the omission of a cap and administrative er simply no evidence of that whatsoever he was not the arbitrator found and this is based on false admissions he was not promised and then kaplan there's no evidence of any discussion or request simply generated from the template and it was determined that that template was an error so there is no evidence whatsoever as to a cat and that and the e mails that he points to the discussion between hoffman is this intentional because there are only a couple of folks here without caps which shows that there was a policy and then miss dyer looks at the template and she says i'm seeing that the template is come into effect with u d p direct and so when it was investigated it was determined that that was an error so there is no evidence that is suggest the possibility of an intended exception it would give him and i kept plan and all he can point to is the fact of his cut the face of his contract and that could be either by air or by intent but that there is nothing when she had four sworn opponents all testify that and i think it's a little misleading one of the bonuses the revenue attainment bonus is paid you know as the revenue is booked and so you get what under the contractor advances on the bonus so for the revenue that was booked he would get it if vance's on that but those amounts were well below the cap and therefore the question didn't even a rise as to whether you know to apply the cap or not because not guaranteed commission or bonus payments and there's nothing earned until there's a final management decision so we had no contract right to it and the the the really no genuine issues as to whether there was an administrative error or not but judge king i would submit again that might have been the standard if this were coming up for appeal one might say well he made an error he just didn't apply the rule fifty six standard but that's something different from vacate what is needed for to vacate an arbitration award this is this court has said you know the parties have agreed to the resolution of the facts of the law by the arbitrator so it's only if he doesn't do his job he has to have willfully decided i'm just not going to apply to fifty six and if you look at appendix seven hundred and forty eight they're sort of distracting but would it would it matter it you know it does show both parties thought they could get summary judgment he did oppose summary judgment on this on this issue so i think this court could take that into account but the one i was saying is i think you have to look if you see when reasonable fact finder of the opposite then he concludes seven hundred and sixty three dollars no material dispute exists concerning these facts of administrative error so he is not choosing to ignore rue fifty six he is not willfully would like to turn now to the the maryland wage payment and collection law issue judge leg also did not choose to disregard or ignore a clearly defined legal court decision and state law is never binding it is that most persuasive and judge leg then applied the principles of maryland law at appendix seven hundred and sixty seven to find that the plan bonus  the legal principles he perceived to be correct and on point and so again is contesting judge legs interpretation and application of state law which is not cognize a blend of the f a a that alone should dispose of this issue on appeal but judge leg also correctly analyzed the statute the statute as both this court and the maryland court of appeals have held treats a poem this as a wage only if it is both promise for service and if all conditions are fulfilled such that it is due to an employee performance is only one such condition and as this court held a very gazey the employee must be not only entitled by promise to the bonus he must be a title by promise of the bonus not merely eligible and that's not the case here i've already mentioned that the contract says bonuses are not guaranteed it grants for work if the employee had already performed and the wages cannot be withheld from terminated employees even if the contract so provides and the reason this is there production from terminated employees at the employer's discretion so many x actually supports the course decision in via gazey and the arbitrator's decision here which derives not only from medics but the prior decision and  the rd claim your honor welch's challenge to the award as failing to draw its essence from the contract fails this too is an exceedingly narrow standard plies only when the result is not rationally inferrable from the contract this court has held that the standard is not error but ultra vires actions just like with manifest disregard of the law so if the arbitrator was even arguably construing the contract the award must be upheld and for all the reasons i've given the oracle had full power to adjust the contract for administrative er and nothing prevented in that adjustment for it to increase the cap fifty percent annual target variable so as the district court held it appendix for thirty nine dollars for forty b challenge simply ignores the expressed terms of the contract and there's nothing to suggest that the arbitrator disregarded modified or even misinterpreted the contract now like my colleague began with the patent decision that's very distinguishable that is a case in which there was an arbitration agreement that had no statute of limitations and the arbitrator imported from an earlier arbitration agreement a one year statute of limitations and disregarded that the contract specifically said that all prior agreements were superseded and if he'd applied massachusetts law as this new arbitration agreement required then the claim would have been timely so that is one where there was effectively a rewriting of the contract which is not present here and you are just addressing a few points and the question about whether there was a template there i think that's basically undisputed mister discussed that in his testimony district court relied on that and you see that the only genesis of the lack of the cap was by application of the of the template and as i discussed in this larsen miss dyer and mr larson only addressed the functioning of the template and it was of the annual target variable as far as the definition of administrative error your honor that is actually part of the contract you will note its appendix six  dollars is is and it includes a plan elements and formulas so there's no doubt that this is the kind of administrative error that was contemplated and it can certainly be unilateral does not have to be a mutual mistake as under contract law so we think that he that the arbitrator correctly applied to fifty six and the maryland wage law but if even if he didn't you can one cannot i think fairly determine that he willfully flouted rule fifty six i don't believe judge elected that it's a very demanding standard for vacate or if there are no more questions your honor i ask about  ceiling all the record here what do you know very think about that your honor i wasn't involved earlier and i apologize i had dissipated that question i would defer  swappers explanation seems correct and my understanding the joint appendix has a confidential version but also a non confidential version is primarily payout amounts that doesn't seem that most much but i appreciate your work thank you baulch agreed to there is no evidence whatsoever in this record that mr baulch ever agreed to a cap contract and his two thousand and fifteen plan it is beyond dispute that he never decision their discretion cannot be exercised in a manner that is arbitrary or capricious as oracle concedes and as arbitrator like said is that oracle unilaterally after giving an uncapped contract and after mr baltar has done everything he was required to do and the evidence says he did it well he performed his job the money was earned by oracle the largest contract in oracle's history after all of that and after his work is done which is what medic says implicates the way jack then oracle in correcting an administrative error under the guise of administer correcting an administrative error can decide at that point well let's just change the number let's use mr spragg vns personal whim to do so he'll decide well let's take this number it'll be the cap plus we'll call it  cap plus and we'll call that an administrative error without any prior indication of error without any communication whatsoever to mr baulch of the error that is the definition of capricious and to do that at summary judgment when every inference is to be taken in a light most favorable to mister all when every factual discrepancy is to be taken in a light most favorable to mr bolton that is the manifest disregard of the law here and as this court said and it's the jacobs versus north carolina administrative office of the court case that we in our papers and judge can you were part of that this is in principles of summary judgment are violated when a fact finder quote fails to credit evidence that contradicts some of its key factual conclusions in this case arbitrator leg could not reach his conclusion without making factual findings about credibility about about the subjective determination he ignored clearly conflicting evidence he dismissed it in his opinion as quote confusion that was subsequently clarified the record evidence is a desire for example to link mr ball chiz payment to other team members on this government contract team to come up with this fifty three percent formulation that mister scrafton wanted everybody to get because he thought different people on the team should get different percentages associated with their plans it evidence is modeling that show mister dodson who is mr baltar's boss who clearly did have a cap it it showed modeling that makes clear in their internal modeling that mr dotson has a cap that mr ball has no cap and that mr dodson's captured be exceeded so that he clearly is presented as evidence that needed to be considered here if if rule fifty six dollars is going to be followed i only have less than three minutes left so i will briefly turn to the wage act the house felt case which i had the privilege of handling at the trial court it was acknowledged by judge leg but then disregarded and i agree with counsel that that is that can be looked at but it is not binding precedent at the trial decision the medics case which articulate the public policy rationale behind the wage act as does house felt makes clear and judge ho felt judged chang said it best and how it felt when he said quote contractual language between the parties cannot be used to eliminate the requirement and public policy that employees have a right to be compensated for their effort that is the purpose of the very purpose of the way jack and we get into a very dangerous paradigm if an employer can and its contracts compel arbitration promised what amounts to  apocryphal wage reserved for itself some discretion to correct administratively errors defined and whatever fashion to correction of the administrative error specifically exact performance from their employee have him finish his performance then fail to pay that wage and enjoy a complete escape from judicial scrutiny because of deference to be accorded to an arbitrator that can't be the law otherwise there would be no judicial review so the notion that this court set forth in the patent case in the patent case and that other courts have set forth if there is judicial review of an arbitrator's decision and of an arbitrator discretion and this three hundred dollars plus percent of mr ball tis quota that was paid to him finds no no rational relationship to the contract it finds no rational relationship to the cap had been in the contract it's a completely different number and so the only explanation for it requires an assessment by this arbitrator of credibility of mr scrafton who said oh well it's the cap plus and this is how i did it and this is why i did it at the end and this is why all twelve of us  that is precisely what cannot be done in and consistent with the mandates of rule fifty six and for those reasons we ask that this court vacate the award