position that the district court improperly applied brown v brown theel and williams v the n f l to the facts of this case in this case the arbitrator mr goldman was supposed to be applied brown and williams to the facts of this case and it was contrary to the evident partiality standard established by the court in commonwealth coding v continental casually and adopted in this court's opinion merrill lynch why why should we be asking another question that is where there are significant doubt about his impartiality rather than the test that the district co the standard olson and commonwealth even the narrowest standard would be that the business had to be more than trivial with a party but didn't the district more that we disagree that just because it should have been there when it's a neutral arbitrator as opposed to a partial party or a traitor the neutral arbitrator nondisclosure with a non trivial any evidence of actual partiality or bias in this case or is it purely as a purely a personal role the arguing for which is non disclosure equals you know the ability to overturn the arbitration decision well the personality is demonstrated by the fact that he either knew or should be presumed to know that he worked as a mediator for morgan stanley and he hid that he did not  well that could be a mistake too and i guess what i'm getting at is is there any irregularity in the proceedings where there are any decisions with which you take particular issue where there are any instances during the proceedings in which he displayed bias or partiality or made you know questionable rulings or are any of those allegations in the case or is it purely delegations or not in the case ok so it then it is it is a per se rule and prior involvement in any way cause this person i don't think it is the per se rule the disclosure has the thing not disclosed has to be more than trivial it has to be of a reasonably significant party is impartiality the idea that this person was an attorney and an arbitrator he should have been able to determine that he conflicts well he wonders if he did what is it about this particular omission particularly in these circumstances well to give me a significant doubt about his impartiality he either impartiality amps are does sound like a broken record but i don't i don't understand why this or that undermine two years or another collection of words which we probably don't need undermine your confidence in the outcome though i can only go back to in delta where they said the the failure to disclose more than for the trivial business experience with a party in itself is evidence of partiality well but there was a significant amount of our involvement between the parties and the arbitrator in that case it was built to delta and in saying that the court actually found the other way but they did say that did failure to disclose that in itself can result in a finding of partiality this significant dull standard if that's the that we would have removed why isn't even under your standard the triviality standard why wasn't that non disclosure here trivial and follow my reasoning here which is i understand that you make the case that mediation arbitration are different but there are six prior i think morgan stanley arbitrations over which he presided and he disclosed and the only thing he didn't disclose was a mediation involving morgan stanley and so why isn't the failure to disclose a seven contact were broken or cases with don't have anything to do with public customers one was the settled case between the broker between the customer and morgan stanley the other case the germ didn't give any real cause for concern the other the other two to make the total of six were cases that he had been assigned to but not that participated in at that point  those cases just didn't give cause for any significant third in their contacts between an arbitrator in a figure a proceeding in the parties is always on the record never was there anything special or anything you know i know that you you learned about that the mediation later after after the arbitration is there anything about that prior mediation that's troubling you or is it the fact of the mediation itself in the impartial arbitration panel because of the misbehavior of arbitrator goldberg and not disclosing his we don't you have to do something more than that and go into the certain go into the room result in the circumstances and i have to be some kind of objective showing i do think  a final arbitration award it sets forth very high numerated standards for when a party can come into court and ask the court to vacate a final arbitration award it is not a statute that provides a remedy for any procedural shortfall in the arbitration process it's a very high par and in this case as well of most relevant to this case it provides a remedy for evidence partiality and i think it's key to stop and just pozen the plain meaning of that phrase evident partiality don't know anything about the reasons for the nondisclosure what we do know and what the case law requires is to look at that underlying information was there something about this mediation this past contact with a party that as a judge are not such and cause a significant doubt single person now witness counsel facts legal issues it was held in an entirely different state there's simply no reason to think that somebody who participated as a neutral mediator which is important to remember mediators are not  on behalf of the parties they are neutral facilitators of essentially private settlement conversations and we have no idea what happened there it could have been a ten minute conference you don't that there's nothing in the record about that but on its face there is no relationship between that proceeding and the one that should cause the court to have significant doubt that it could have affected mr goldman's partiality in this case and i think actually the two most relevant precedents from this court that i just want to highlight the montages case in two thousand and one unequivocally stated that a federal court cannot vacate an arbitration award based on failure to disclose merely because an arbitrator failed to comply with nasty rules that was the predecessor to finish it was nasty that's clear as day and plaintiff has essentially no response to that case but you know i don't want to say that it could never be a relevant circumstance but i think what courts have but is very strong language as it should be given the standards set by the statute and all of these cases clearly show that there is no per se rule this is not a statute that provides a remedy for disclosure or non disclosure itself is account of the reality of the arbitration process that these are typically people who come from the industries that are involved in the arbitrations and that there is going to be a good amount of mixing in the marketplace that we have to realize not every single contact will be able to be there any relevance to the fact that and you mention the whole street cases that you can expand outside of the grounds for vacate or under the federal arbitration act but is there any role here for the fact that the parties contract it and made very clear that disclosure arbitration which is not contained in the federal arbitration act and the same arguments that plaintiff isn't dance in her brief the same cases about arbitration being a creature of contract and the parties can can set the table in the way they want by their contractual agreement and the cour said that's not that may be true in some aspects of the arbitration process but here in terms of the ability of a litigant to come into court after the award and ask a court to revisit everything and opened a whole can of worms again congress has a limited and i don't think that amounts to a contractual agreement that if an arbitrator nonparty the supreme and doesn't comply with an obligation placed on him we the parties are agreeing that the award should be vacated i think that takes a lot of steps to even get to that point but again it doesn't matter because the supreme court has said in the regime of vacating final arbitration awards the parties cannot use their contract to get around the regimes by congress now again as i here there is no relationship a very strong proceeding to the plots proceeding we don't know anything about what happened there it's not in the record speculation about ex parte contacts again something that might be relevant  related in any way to the current proceeding we might think about those differences but in a case that is entirely unrelated to the present proceeding and happened several years prior i don't think there's been any serious showing that that substantively that relationship significant elaboration and refinement of those standards but even under a very generous reading of the appearances by a standard the court would still look to the underlying information and say is this something that appears to give rise to bias and that even that is simply not met in this trace and i mean that is truly the key example of what kinds of contacts it causes concern and there's nothing even approaching that level here i also just want to point out of relationship that the arbitrator could have been removed for cause for that's simply not true the funerals don't provide that this is something that would have given rise to a for cause removal on the funerals in fact or for cause removals incorporate the standards from the case law rule twelve four zero seven says an arbitrator can be removed if the arbitrator is biased lacks impartiality or has a director and direct interest in the outcome the interest for bias must be definite and capable of reasonable demonstration rather than remote or speculative so even finra itself as recognize that before we're going to talk about really removing an arbitrator or causing concern about the finality of an award a really high threshold has to be met notwithstanding the more  rules because it had to worry that any violation of those rules no matter how trivial could undermine the finale of an arbitration award and that's essentially what plaintiff is asking here is that any procedural irregularity in the arbitration that doesn't exactly comply with the  of a fair hearing and that simply can't be said here at what courts have really looked at is this something that we can question the integrity of the outcome of the arbitration because something related to the taking of evidence or the conduct of the hearing was so deficient that we're worried that the split again didn't have a fair opportunity to present their position that simply didn't happen here the facts of the moving case from the ninth circuit really the facts you're pale in comparison to that one where an arbitrator could have been permanently disqualified from even working for finra because he lied about having a logic nothing approaching that has been alleged here and i think i'll just conclude by saying i think twenty three is not the proper avenue for this dispute about past contacts between a party in an arbitrator are just under the evident partiality standard i don't think a creative reading of twenty three should be used as an end run around meeting those appropriate standards so must the court has any questions i'll stop know thank you i've got just a couple quick points one point one month is the actually the holding in montana is was that it didn't meet any of the standards including the commonwealth the previous media service of the mediator for a party to an arbitration must be disclosed and the reason the language closely tracks commonwealth it might preclude an arbitrator from rendering an objective an impartial determination and that's very closely tracks commonwealth so this is not a poorly thought all rule the other point is that the district court it isn't a good way to get yourself hired as the mediator and the he recognized the problem with having morgan stanley have goldman work as an undisclosed mediator forum and then come and do an to disclose dire attrition the proceeding itself there's nothing in the record to question  it isn't there it are there facts so that suggests that different employees different people did know it if you look at the uniform submission agreement of morgan's family that's in the appendix that goes to new york the same place where the struck mediation in the struck arbitration run out of the their it's interesting to put that in there but things are run through new york very well w