exaction of them or is not extraordinary action in this case and therefore not subject to arbitration because it's just like you have a cases where factions the board said could we have someone from who's an expert in insurance tell us what's good about put it in those cases the it's own council we believe they did it and that's why they ask who wants to go as the federal courts appoint the umpire we believe there was an understanding at the time and that's why it's surprise surprise is that the other court didn't you know didn't open it up at least from the summary judgment the background of this separate challenge will approach that is correct the court did not open it up for discovery no discovery was provided the ultimate fact in the background of the case one provided because the court dismissed it on the motion equal representation when you have both sides have to agree upon the payment of fees that counsel we didn't ask for a motion their attorneys be hired for traffic tickets for doing do trust documents or real estate for the parties we simply thought was reasonable if you look at the motion that was put before the parties to the parties agreed upon would be the issue that was never the question about how far they were both in some direction or another this issue about the spending unnecessarily needlessly and in in an infinite manner is controlled by the fact that it would have to be approved by the entire board and there's a control there was no destruction of tomorrow practical questions trying to gauge how much control the cold war actually has over what ultimately is a we have off on the subject involving those in the past and it's a very practical resolution someone goes to be approved by the entire board and they have to know that as a condition going into the process not later on morning your honor my name is jim sanger and counsel for the union trustees of the welfare fund the welfare fund is a joint labor management trust it's governed by  is known as the equal representation rule in the schedule requires that this joint board be appointed by equal number of representatives of labor in management and is  the rd circuit has said in the essex in its essex industry decision which was quoted by the district court the equal representation was intended to give each side veto power over planned administration decisions the rule has been in effect for seventy six years there are no exceptions pretty amazing no exceptions the rule has been vigorously enforced by the has no exceptions the th circuit has held that the rule is triggered by the possibility of an abuse actual abuse is not required in the a circuit looks beyond the trust agreement at the practice hughes the extraordinary exception is that when a deadlock motion seeks an action which is beyond the authority of the joint board under either section three o two c five a receipt of the trustee agreement then the prohibited from doing this lawsuit is a radical proposition it would make the equal representation rule on in forcible and it would end the extraordinary exception goal counsel to a joint board already has fun council which was hired by the joint board so the deadlock motion authorizes the use of three law firms with three separate order that the the the decision about the rates are it's reasonable and customary which is the standard your honor that doesn't risk and so a risk to requires the services be necessary so if a faction hires a law firm the joint board cannot say well that wasn't necessary because that's been delegated to the faction if the faction agrees to a high hourly rate what's customary well if the law firm charges their rate to other clients then dangle the waiver of conflicts of interest the waiver the attorney client privilege what projects the law firm works on the terminations a law firm the replacement a law firm all the add is now going to be delegated to the factions not just the employer side the union faction or this motion would have the right to go out and hire their own law firm and decide what projects that law firms going to work on and away we go how  the district and i think the district court had it right that the threat to stiffle law firm is just not workable particularly with all the authority that's been which would be paid by the trust now as explaining our brief in a mix in the supreme court's a mix called case the supreme court said that joint boards are not supposed to operate this way they're not supposed to be considering the labor management collective bargaining issues that are sometimes called kwanza you have the serial and the court found the answer to what was why this motion was why the answer is deadlock motion came from the rd circuit ethics decision where the rd circuit said that there's a candid recognition that the relationship between the two parties not requiring that one actually occur and in recognition of the quote infinite creativity of mankind to circumvent statutory schemes and the court held the district court that letting the two factions have their own law firms would violate the safeguards in three hundred and two c five which is the equal representation rule and result in would result in the possible dissipat trust fund and says now it's important to keep in mind that the money in these trusts are supposed to be used solely for the benefit of the employees to either pay benefits or pay a necessary and reasonable expenses of the trust and incredibly in their reply breaks to the court the employer trustees say that the wastefulness the waste of planned assets is beside the point and has nothing to do with the lawsuit i would like the court to focus on the th circuit decision in castello which we believe is just about on all fours it's the only reported case where a there was a permanent delegation of authority with a joint board in this case to hire employees of the trust it was a joint apprenticeship program and the it was to the employer side and the case goes up to the th circuit in the th circuit says that violates the equal representation  rule and the th circuit ordered the trustee agreement reform to comply with three hundred and two c five there is no difference between a trust hiring an employee in a trust hiring a law firm it's  i many trusts have in house attorneys many of them have outside law firms sometimes they have both but the point is that this delegation violates the equal representation rule deadlock motion to terminate a specific law firm that had been hired to represent the joint or is nothing to do with our case the nd was the nd circuit mahoney case where there is a dead k motion to not pay the fee of an insurance agent who had been hired by the joint or again nothing to do with our case there is no reported case that has permitted indefinite delegation to a faction to hire either service providers or employ east now the district horse or gibson and so the question for you what what about to get e on his own is or her own consultant outside counsel for their own protection and the in ask the the full board to approve think that's an entirely different question because then the then the decision is before the joint boards of the joint or would say well why why did you do this let's see the work product you know it's a problem  where each one you know it isn't really workable for every one of these trustees to go out and hire their own law firm but maybe there are circumstances where it's justified in the then the jo board could make the decision ok under these limited circumstances this was necessary and it will serve the interest of the of the trust and we'll pay it or they c you know we just can't run the trust this way or each one of you run out and talk to your own law firm there's got to be a more organized you know you've got a st bring the issue to the board let's going to pension from fun council and then we use the board decide if it's necessary so it's it's the unlimited delegation of authority that's at the root of the problem here and that violates the rule it is true that these trusts may need different law firms with different expertise but these law firms will report to the board this notion that there's some practice out there the factions hire their own law firms is preposterous and they cite to no authority this notion that  the union trustees somehow consented to separate fact that the factions could have their own legal counsel is preposterous it's not pled in the complaint there's absolutely no evidence of that and therefore don't worry about the equal representation rule that's just a warm over of this demo say argument it it would make the equal representation rule unenforceable if you look at the trustor agreement your honour's it's got the equal representational hardwired into it there's a specific provision section six dollars that says there can be delegations to subcommittees of the board but the sub operate in compliance with the equal representation rule for this idea that there's somehow legal services exception to the rule this is ridiculous it's not supported by any cases at least if they don't have a contract claim for the value that they have given to the board in the nature of their bias and whether you approve it or not ultimately isn't some work likely to require it to be on is the idea we spoke of a court when a member of the board of trustees says i don't know what i don't know and i'm not knowing it from the bond counsel general ugh like to be able ask them questions particularly one good example is coming up today is a right now this this rule or this requirement of equality are on the board because you've got the possibility of a fraction receiving different advice and then you also have a going on my time